Title of Regulation: 4VAC20-252. Pertaining to the Taking of Striped Bass (amending 4VAC20-252-90, 4VAC20-252-100, 4VAC20-252-135).

Statutory Authority: §§ 28.2-201 and 28.2-204.1 of the Code of Virginia.

Effective Date: September 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This amendment reinstates the two fish limit for the December recreational striped bass fishery in the Chesapeake Bay and its tributaries and in the Potomac River tributaries.

4VAC20-252-90. Bay fall striped bass recreational fishery.

A. The open season for the bay fall striped bass recreational fishery shall be October 4 through December 31, inclusive.

B. The area open for this fishery shall be the Chesapeake Bay and its tributaries.

C. The minimum size limit for this fishery shall be 18 inches total length.

D. The maximum size limit for this fishery shall be 28 inches total length, except as provided in subsection GF of this section.

E. The possession limit for this fishery shall be two fish per person from October 4 through December 20.

F. The possession limit for this fishery shall be one fish per person from December 21 through December 31.

G. F. The possession limits described in subsection E and F of this section may consist of only one striped bass 34 inches or greater.

4VAC20-252-100. Potomac River tributaries summer/fall striped bass recreational fishery.

A. The open season for the Potomac River tributaries summer/fall striped bass fishery shall correspond to the open summer/fall season as established by the Potomac River Fisheries Commission for the mainstem Potomac River.

B. The area open for this fishery shall be the Potomac River tributaries.

C. The minimum size limit for this fishery shall be 18 inches total length.

D. The maximum size limit for this fishery shall be 28 inches total length, except as provided in subsection GF of this section.

E. The possession limit for this fishery shall be two fish per person from October 4 through December 20.

F. The possession limit for this fishery shall be one fish per person from December 21 through December 31.

G. F. The possession limits described in subsection E and F of this section may consist of only one striped bass 34 inches or greater.

4VAC20-252-135. Gill net mesh size and tending restrictions: exemptions.

A. Any registered commercial fisherman who is permitted to harvest striped bass from the coastal area in accordance with 4VAC20-252-130 C and sets or fishes any gill net in the coastal area shall be exempt from the maximum gill net mesh size requirements during November and December as described in 4VAC20-430-65 A and B.

B. Any registered commercial fisherman who is permitted to harvest striped bass from the coastal area in accordance with 4VAC20-252-130 C and sets or fishes any gill net seven inches or greater in stretched mesh in the coastal area shall be exempt from the tending requirements described in 4VAC20-430-65 E and F during the months of November and December.

C. Any registered commercial fisherman who is permitted to harvest striped bass from the coastal area in accordance with 4VAC20-252-130 C shall display an optic yellow flag issued by the commission while fishing for striped bass in the coastal area and while transiting the coastal area before and after a striped bass fishing trip. This flag shall be prominently displayed on the starboard side of the vessel.

D. It shall be unlawful for any registered commercial fisherman who is permitted to harvest striped bass from Virginia waters and possesses striped bass tags on board a vessel to place, set, fish or possess aboard a vessel any gill net with a stretched mesh size greater than nine inches, from February 1, 2006, through March 31, 2006, and November 1, 2006, through December 31, 2006.

Title of Regulation: 4VAC20-610. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (amending 4VAC20-610-60).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: October 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment requires all seafood landing licensees to: (i) submit a monthly harvest report to the commission; (ii) notify the commission when they do not land any seafood species in Virginia during any month; (iii) maintain daily harvest records for one year and make those records available, upon request, to authorized representatives of the commission; and (iv) allow those authorized by the commission to sample their landings for biological information. The amendments also make it unlawful for seafood landing licensees to fail to fully report harvests and related information.

4VAC20-610-60. Mandatory harvest reporting.

A. It shall be unlawful for any valid commercial fisherman registration licensee, seafood landing licensee, oyster aquaculture product owner permittee, or clam aquaculture product owner permittee to fail to fully report harvests and related information as set forth in this chapter.

B. It shall be unlawful for any recreational fisherman, charter boat captain, head boat captain, commercial fishing pier operator, or owner of a private boat licensed pursuant to §§ 28.2-302.7 through 28.2-302.9 of the Code of Virginia, to fail to report recreational harvests, upon request, to those authorized by the commission.

C. All registered commercial fishermen and any valid seafood landing licensee, oyster aquaculture product owner permittee, and clam aquaculture product owner permittee shall complete a daily form accurately quantifying and legibly describing that day's harvest from Virginia tidal and federal waters. The forms used to record daily harvest shall be those provided by the commission or another form approved by the commission. Registered commercial fishermen and seafood landing licensees may use more than one form when selling to more than one buyer.

D. Registered commercial fishermen, seafood landing licensees, valid oyster aquaculture product owner permittees and valid clam aquaculture product owner permittees shall submit a monthly harvest report to the commission no later than the fifth day of the following month. This report shall be accompanied by the daily harvest records described in subsection E of this section. Completed forms shall be mailed or delivered to the commission or other designated locations.

E. The monthly harvest report and daily harvest records from registered commercial fishermen shall include the name and signature of the registered commercial fisherman and his license registration number,; buyer or private sale information,; date of harvest,; city or county of landing,; water body fished,; gear type and amount used,; number of hours gear fished,; number of hours the registered commercial fisherman fished,; number of crew on board, including captain,; species harvested,; market category,; live weight or processed weight or of species harvested,; and vessel identification (Coast Guard documentation number, Virginia license number or hull/VIN number). Any information on the price paid for the harvest may be provided voluntarily. The monthly harvest report and daily harvest records from oyster aquaculture product owner permittees and clam aquaculture product owner permittees shall include the name, signature, permit number, lease number, date of harvest, city or county of landing, gear (growing technique) used, species harvested in weight or amount, number of crew, and buyer or private sale information. The monthly harvest report and daily harvest records from seafood landing licensees shall include the name and signature of the seafood landing licensee and his seafood landing license number; buyer or private sale information; date of harvest; city or county of landing; water body fished; gear type and amount used; number of hours gear fished; number of hours the seafood landing licensee fished; number of crew on board, including captain; nonfederally permitted species harvested; market category; live weight or processed weight of species harvested; and vessel identification (Coast Guard documentation number, Virginia license number, or hull/VIN number).

F. Registered commercial fishermen, oyster aquaculture product owner permittees and clam aquaculture product owner permittees not fishing during a month, or seafood landing licensees not landing in Virginia during a month, shall so notify the commission no later than the fifth of the following month by postage paid postal card provided by the commission or by calling the commission's toll free telephone line.

G. Any person licensed as a commercial seafood buyer pursuant to § 28.2-228 of the Code of Virginia shall maintain for a period of one year a copy of each fisherman's daily harvest record form for each purchase made. Such records shall be made available upon request to those authorized by the commission.

H. Registered commercial fishermen, seafood landing licensees, oyster aquaculture product owner permittees and clam aquaculture product owner permittees shall maintain their daily harvest records for one year and shall make them available upon request to those authorized by the commission.

I. Registered commercial fishermen, seafood landing licensees, and licensed seafood buyers shall allow those authorized by the commission to sample harvest and seafood products to obtain biological information for scientific and management purposes only. Such sampling shall be conducted in a manner that does not hinder normal business operations.

J. The reporting of oyster harvest and transactions by licensed seafood buyers, oyster aquaculture product owner permittees, clam aquaculture product owner permittees, and any registered commercial fisherman who self-markets his oyster harvest shall be made in accordance with 4VAC20-200 and Article 3 (§ 28.2-538 et seq.) of Chapter 5 of Title 28.2 of the Code of Virginia.

K. The reporting of the harvest of federally permitted species from beyond Virginia's tidal waters that are sold to a federally permitted dealer shall be exempt from the procedures described in this section.

L. The owner of any purse seine vessel or bait seine vessel (snapper rig) licensed under the provisions of § 28.2-402 of the Code of Virginia shall submit the Captain's Daily Fishing Reports to the National Marine Fisheries Service, in accordance with provisions of Amendment 1 to the Interstate Fishery Management Plan of the Atlantic States Marine Fisheries Commission for Atlantic Menhaden, which became effective July 2001.

Title of Regulation: 4VAC20-620. Pertaining to Summer Flounder (adding 4VAC20-620-75).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: August 28, 2009, through September 27, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Preamble:

The amendment allows research exceptions to possession and size limits in the recreational Summer Flounder fishery. Possession of VIMS-tagged Summer Flounder shall not count towards the personal recreational possession limit of five Summer Flounder, 19 inches or greater in length; possession of any undersized Summer Flounder with VIMS tags shall not constitute a violation of the minimum size limit of 19 inches in total length. It is unlawful for any person to remove tags affixed by VIMS from any caught or harvested Summer Flounder.

4VAC20-620-75. Research exceptions to possession and size limits.

Nothing in this emergency chapter shall preclude any person who is legally eligible to fish from possessing any Summer Flounder tagged by the Virginia Institute of Marine Science (VIMS) with two different types of tags, in each of 260 Summer Flounder. One tag is a white data recording tag of 1/2-inch diameter and 1-1/2 inches in length that VIMS affixed to the stomach area of Summer Flounder. That tag is inscribed with "VIMS $200 reward" and the VIMS telephone contact number. The second tag is a yellow "T-bar" or "spaghetti" type tag that VIMS affixed to the dorsal area of these double-tagged Summer Flounder. The yellow T-bar tag is inscribed with "reward" and the VIMS contact telephone number. Possession of these VIMS-tagged Summer Flounder shall not count towards the personal recreational possession limit of five Summer Flounder, 19 inches or greater in total length. Possession of any undersized flounder that have any affixed VIMS tag, as described above, shall not constitute a violation of the minimum size limit of 19 inches in total length. It shall be unlawful for any person to remove either type of tag from any caught or harvested Summer Flounder. It shall be unlawful for any person to retain any of these VIMS-tagged Summer Flounder for a period of time that is longer than necessary to provide the VIMS-tagged Summer Flounder to a VIMS representative. Under no circumstances shall any VIMS-tagged Summer Flounder be stored for future use or sale or delivered to any person who is not a VIMS representative.

Title of Regulation: 4VAC20-1040. Pertaining to Crabbing Licenses (amending 4VAC20-1040-20).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: September 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This amendment requires that any crab pot or peeler pot license that is purchased by the commission through the Federal Crab Disaster Relief Program shall be permanently retired and shall not be available for sale to any fisherman.

4VAC20-1040-20. License sales moratorium and license ineligibility conditions.

A. For the lawful crabbing seasons of 2008 through 2010, commercial licenses for crab pot, peeler pot, crab scrape, crab trap, ordinary trot line, patent trot line, and dip net shall be sold only to those registered commercial fishermen who have been determined by the commission to be eligible to purchase any of these licenses in 2007, except as described in subsection B of this section.

B. For the lawful crabbing seasons of 2009 and all subsequent seasons, those registered commercial fishermen who were eligible from 2004 through 2008 for any crab pot or peeler pot licenses, but reported no harvest from 2004 through 2007, shall be placed on a waiting list and shall be ineligible to purchase a crab pot or peeler pot license, except as described in subdivisions 1 and 2 of this subsection.

1. Those crab pot or peeler pot fishermen described in this subsection who reported harvest prior to the control date of December 17, 2007, from the crab dredge fishery for both the 2005/06 and 2006/07 seasons shall remain eligible to purchase their crab pot or peeler pot license for the lawful crabbing seasons of 2009 and 2010.

2. Those crab pot or peeler pot fishermen described in this subsection who do not meet the condition described in subdivision 1 of this subsection shall remain on the waiting list until such time that results from the Chesapeake Bay Winter Dredge Survey indicate that an abundance of 200 million age 1+ blue crabs (blue crabs 2.4 inches and greater, in carapace width) has been attained in three consecutive, seasonal (December - March) surveys.

C. Any person receiving a crab license by lawful transfer in 2008 through 2010 also establishes his eligibility to purchase that specific license through 2010; however, any person either failing to register as a commercial fisherman in any year or lawfully transferring his crab license to another person shall forfeit his eligibility to purchase that specific crab license through 2010.

D. Commercial licenses for crab pots, peeler pots, crab scrapes, crab traps, ordinary trot lines, patent trot lines, and crab dip nets may be transferred to an immediate family member of the licensee at any time and, in the case of death or incapacitation of the licensee, may be transferred to a registered commercial fisherman at any time. Crabbing licenses also may be transferred to another registered commercial fisherman, except that not more than 100 licenses shall be transferred in the current year. All such transfers shall be documented on forms provided by the commission and shall be subject to the approval of the commissioner.

E. Any crab pot or peeler pot license that is purchased by the commission through the Federal Crab Disaster Relief Program shall be permanently retired and shall not be available for sale to any fisherman at any time. Any person whose license is purchased under the Crab Disaster Relief Program may re-enter the fishery only through the transfer of another crab pot or peeler pot license as authorized by regulations in effect at the time of the transfer.

Title of Regulation: 4VAC20-1070. Pertaining to Haul Seines (amending 4VAC20-1070-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: August 28, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments exempt certain shoreline haul seine operations from the prohibition on fishing the net in less than three feet of water.

4VAC20-1070-30. Gear restrictions; exemptions; application process.

A. It shall be unlawful for any person to place or set in the water, encircle or enclose any haul seine that exceeds 1,000 yards in length.

B. It shall be unlawful for any person to tie together, set or fish two or more haul seines with a combined total length of netting that exceeds 1,000 yards.

C. It shall be unlawful for any person to tow or drag a haul seine by two vessels so that it operates as a long haul seine. When setting a haul seine with more than one vessel, it shall be unlawful for any person to tow or drag a haul seine more than a distance of 1.0 nautical miles from the point of its deployment in an open configuration through the water.

D. It shall be unlawful for any person to use more than one vessel to move either end of a haul seine net or nets.

E. It shall be unlawful for any person to remove fish or other catch from the pocket when the pocket is located in waters that are less than three feet in depth, except as described in subsection F of this section. Measurement of the depth of water containing the pocket may be taken within the pocket or within a distance of 15 feet from the pocket, using a pole-type measuring device graduated into one-foot intervals of measurement.

F. It shall be lawful for any person to remove fish or other catch from the pocket when the pocket is located in waters that are less than three feet, provided that:

1. The area where the pocket is to be established, as well as any area within 15 feet of the pocket, are devoid of submerged aquatic vegetation;

2. Establishing the pocket and removing fish or catch from the pocket is accomplished without the use of a boat or vessel; and

3. The haul seine licensee has received permission from the commissioner or his designee to establish the pocket, at the site requested by the haul seine licensee, after that licensee has notified the commissioner or his designee, in writing, and described the haul seine operation and location of the haul seine area.

Title of Regulation: 4VAC20-1090. Pertaining to Licensing Requirements and License Fees (amending 4VAC20-1090-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: December 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments increase nonresident fees for any Virginia saltwater recreational fishing license, and any nonresident whose private boat is not registered in Virginia shall not be eligible to purchase a saltwater fishing license for that private boat.

4VAC20-1090-30. License fees.

The following listing of license fees applies to any person who purchases a license for the purposes of harvesting for commercial purposes, or fishing for recreational purposes, during any calendar year.

1. COMMERCIAL LICENSES.
Commercial Fisherman Registration License	$190.00
Commercial Fisherman Registration License for a person 70 years or older	$90.00
Delayed Entry Registration.	$190.00
Delayed Entry Registration License for a person 70 years or older	$90.00
Seafood Landing License for each boat or vessel	$175.00
For each Commercial Fishing Pier over or upon subaqueous beds (mandatory)	$83.00
Seafood Buyer's License -- For each boat or motor vehicle	$63.00
Seafood Buyer's License -- For each place of business	$126.00
Clam Aquaculture Product Owner's Permit	$10.00
Oyster Aquaculture Product Owner's Permit	$10.00
Clam Aquaculture Harvester's Permit	$5.00
Oyster Aquaculture Harvester's Permit	$5.00
Nonresident Harvester's License	$444.00
OYSTER HARVESTING AND SHUCKING LICENSES
For each person taking oysters by hand, or with ordinary tongs	$10.00
For each single-rigged patent tong boat taking oysters	$35.00
For each double-rigged patent tong boat taking oysters	$70.00
Oyster Dredge Public Ground	$50.00
Oyster Hand Scrape	$50.00
To shuck and pack oysters, for any number of gallons under 1,000	$12.00
To shuck and pack oysters, for 1,000 gallons, up to 10,000	$33.00
To shuck and pack oysters, for 10,000 gallons, up to 25,000	$74.00
To shuck and pack oysters, for 25,000 gallons, up to 50,000	$124.00
To shuck and pack oysters, for 50,000 gallons, up to 100,000	$207.00
To shuck and pack oysters, for 100,000 gallons, up to 200,000	$290.00
To shuck and pack oysters, for 200,000 gallons or over	$456.00
BLUE CRAB HARVESTING AND SHEDDING LICENSES, EXCLUSIVE OF CRAB POT LICENSES
For each person taking or catching crabs by dip nets	$13.00
For ordinary trotlines	$13.00
For patent trotlines	$51.00
For each single-rigged crab-scrape boat	$26.00
For each double-rigged crab-scrape boat	$53.00
For up to 210 peeler pots	$36.00
For up to 20 tanks and floats for shedding crabs	$9.00
For more than 20 tanks or floats for shedding crabs	$19.00
For each crab trap or crab pound	$8.00
CRAB POT LICENSES
For up to 85 crab pots	$48.00
For over 85 but not more than 127 crab pots	$79.00
For over 127 but not more than 170 crab pots	$79.00
For over 170 but not more than 255 crab pots	$79.00
For over 255 but not more than 425 crab pots	$127.00
HORSESHOE CRAB AND LOBSTER LICENSES
For each person harvesting horseshoe crabs by hand	$16.00
For each boat engaged in fishing for, or landing of, lobster using less than 200 pots	$41.00
For each boat engaged in fishing for, or landing of, lobster using 200 pots or more	$166.00
CLAM HARVESTING LICENSES
For each person taking or harvesting clams by hand, rake or with ordinary tongs	$24.00
For each single-rigged patent tong boat taking clams	$58.00
For each double-rigged patent tong boat taking clams	$84.00
For each boat using clam dredge (hand)	$19.00
For each boat using clam dredge (power)	$44.00
For each boat using hydraulic dredge to catch soft shell clams	$83.00
For each person taking surf clams	$124.00
CONCH (WHELK) HARVESTING LICENSES
For each boat using a conch dredge	$58.00
For each person taking channeled whelk by conch pot	$51.00
FINFISH HARVESTING LICENSES
Each pound net	$41.00
Each stake gill net of 1,200 feet in length or under, with a fixed location	$24.00
All other gill nets up to 600 feet	$16.00
All other gill nets over 600 feet and up to 1,200 feet	$24.00
Each person using a cast net or throw net or similar device	$13.00
Each fyke net head, weir, or similar device	$13.00
For fish trotlines	$19.00
Each person using or operating a fish dip net	$9.00
On each haul seine used for catching fish, under 500 yards in length	$48.00
On each haul seine used for catching fish, from 500 yards in length to 1,000 yards in length	$146.00
For each person using commercial hook and line	$31.00
For each person using commercial hook and line for catching striped bass only	$31.00
On each boat or vessel under 70 gross tons fishing with purse net, per gross ton, but not more than $249	$4.00
On each boat or vessel over 70 gross tons fishing with purse net, per gross ton. Provided the maximum license fee for such vessels shall not be more than $996	$8.00
For up to 100 fish pots or eel pots	$19.00
For over 100 but not more than 300 fish pots or eel pots	$24.00
For over 300 fish pots or eel pots	$62.00
2. COMMERCIAL GEAR FOR RECREATIONAL USE.
Up to five crab pots	$36.00
Crab trotline (300 feet maximum)	$10.00
One crab trap or crab pound	$6.00
One gill net up to 300 feet in length	$9.00
Fish dip net	$7.00
Fish cast net	$10.00
Up to two eel pots	$10.00
3. SALTWATER RECREATIONAL FISHING LICENSE.
Individual License, resident	$12.50
Individual, nonresident	$25.00
Temporary 10-Day License, resident	$5.00
Temporary 10-Day, nonresident	$10.00
Recreational boat, resident	$38.00
Recreational boat, nonresident, provided a nonresident may not purchase a recreational boat license unless his boat is registered in Virginia	$76.00
Head Boat/Charter Boat, resident, six or less passengers	$190.00
Head Boat/Charter Boat, nonresident, six or less passengers	$380.00
Head Boat/Charter Boat, resident, more than six passengers, plus $5.00 per person over six	$190.00
Head Boat/Charter Boat, nonresident, more than six passengers, plus $5.00 per person over six	$380.00
Rental Boat, resident, per boat, with maximum fee of $635	$9.00
Rental Boat, nonresident, per boat, with maximum fee of $1270	$18.00
Commercial Fishing Pier (Optional)	$571.00
Disabled Resident Lifetime Saltwater License	$5.00
Disabled Nonresident Lifetime Saltwater License	$10.00
Reissuance of Saltwater Recreational Boat License	$5.00
Combined Sportfishing License to fish in all inland waters and tidal waters of the Commonwealth during open season:
Residents	$24.50 $30.00
Nonresidents	$42.50 $60.50
Combined Sportfishing Trip License to fish in all inland waters and tidal waters of the Commonwealth during open season, for five consecutive days:
Residents	$10.50 $16.00
Nonresidents	$15.50 $26.00
Individual Resident Lifetime License	$250.00
Individual Nonresident Lifetime License	$500.00
Individual Resident Lifetime License age 45 - 50	$120.00
Individual Nonresident Lifetime License age 45 - 50	$240.00
Individual Resident Lifetime License age 51 - 55	$90.00
Individual Nonresident Lifetime License 51 - 55	$180.00
Individual Resident Lifetime License age 56 - 60	$60.00
Individual Nonresident Lifetime License age 56 - 60	$120.00
Individual Resident Lifetime License age 61 - 64	$30.00
Individual Nonresident Lifetime License age 61 - 64	$60.00
Individual Resident Lifetime License age 56 - 60	$60.00
Individual Nonresident Lifetime License age 56 - 60	$120.00
Individual Resident Lifetime License age 61 - 64	$30.00
Individual Nonresident Lifetime License age 61 - 64	$60.00

Title of Regulation: 4VAC20-1180. Pertaining to Fishing Guides (amending 4VAC20-1180-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: December 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment increases the annual fee for the Class A fishing guide license and the Class B fishing guide license for nonresidents.

4VAC20-1180-30. Fishing guide license; fees.

A. Either a Class A fishing guide license or Class B fishing guide license or a fishing guide reciprocity permit shall be required for a charter boat or head boat captain operating for hire and fishing in the tidal salt waters of the Commonwealth under the jurisdiction of the commission.

B. The annual fee for the Class A fishing guide license or the Class B fishing guide license shall be $100 for a resident and $200 for a nonresident. Fishing guide reciprocity permits can be obtained at no cost provided the applicant furnishes copies of his Maryland fishing guide license and U.S. Coast Guard license.

C. When the same applicant purchases a Class A or Class B fishing guide license prior to purchasing one charter boat or head boat license as required by § 28.2-302.8 of the Code of Virginia, the fee for that charter boat or head boat license shall be reduced by the cost of the fishing guide license.

Title of Regulation: 4VAC20-1220. Pertaining to Separation Between Nets (adding 4VAC20-1220-10, 4VAC20-1220-20, 4VAC20-1220-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: September 1, 2009.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This chapter establishes a minimum distance of 300 yards separating any net and side or end of any fixed fishing device (pound net, fyke net, or staked gill net).

CHAPTER 1220
PERTAINING TO SEPARATION BETWEEN NETS

4VAC20-1220-10. Purpose.

The purpose of this chapter is to establish a minimum distance separating any net and the side or end of any fixed fishing device.

4VAC20-1220-20. Definitions.

The following term when used in this chapter shall have the following meaning unless the context clearly indicates otherwise:

"Fixed fishing device" means a pound net, fyke net or staked gill net.

4VAC20-1220-30. Required distance between nets.

It is unlawful to place a net within 300 yards of the side or end of any fixed fishing device, unless in the same row.

Title of Regulation: 6VAC20-260. Regulations Relating to Bail Enforcement Agents (adding 6VAC20-260-10 through 6VAC20-260-370).

Statutory Authority: §§ 9.1-102 and 9.1-186.2 of the Code of Virginia.

Effective Date: October 14, 2009.

Agency Contact: Lisa D. McGee, Section Chief, Department of Criminal Justice Services, P.O. Box 1300, Richmond, VA 23218, telephone (804) 371-2419, FAX (804) 786-6344, or email lisa.mcgee@dcjs.virginia.gov.

Summary:

This regulation establishes a licensure process, licensure fees, compulsory minimum entry-level training standards, including firearms training and qualifications, standards of conduct, and administration of the regulatory system. It provides procedures for receiving complaints concerning the conduct of any person whose activities are monitored by the board; conducting investigations; issuing disciplinary action; revoking, suspending, or refusing to renew a license; and an appeal process pursuant to the Administrative Process Act.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 260
REGULATIONS RELATING TO BAIL ENFORCEMENT AGENTS

Part I
Definitions

6VAC20-260-10. Definitions.

The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

"Armed" means a bail enforcement agent who carries or has immediate access to a firearm in the performance of his duties.

"Bail bondsman" means any person who is licensed by the department who engages in the business of bail bonding and is thereby authorized to conduct business in all courts of the Commonwealth.

"Bail enforcement agent," also known as "bounty hunter," means any individual engaged in bail recovery.

"Bail recovery" means an act whereby a person arrests a bailee with the object of surrendering the bailee to the appropriate court, jail, or police department for the purpose of discharging the bailee's surety from liability on his bond. Bail recovery shall include investigating, surveilling or locating a bailee in preparation for an imminent arrest, with such object and for such purpose.

"Bailee" means a person who has been released on bail and who is or has been subject to a bond as defined in § 19.2-119 of the Code of Virginia.

"Board" means the Criminal Justice Services Board or any successor board or agency.

"Department" or "DCJS" means the Department of Criminal Justice Services or any successor agency.

"Firearms endorsement" means a method of regulation that identifies a person licensed as a bail enforcement agent who has successfully completed the annual firearms training and has met the requirements as set forth in this regulation.

"On duty" means the time during which bail enforcement agents receive or are entitled to receive compensation for employment for which licensure is required.

"Private security services training school" means a training school that is certified or licensed by the department for the specific purpose of training regulated personnel in at least one category of the compulsory minimum training standards.

Part II
Fees

6VAC20-260-20. Fees.

A. Schedule of fees. The following fees reflect the costs of handling, issuance, and production associated with administering and processing applications for licensing and other administrative requests for services relating to bail enforcement services:

Categories	Fees
Initial bail enforcement agent license	$200
Bail enforcement agent license renewal (biannually)	$200
Firearms endorsement (annually)	$30
Fingerprint card processing (biannually)	$50
Replacement photo identification	$30
Partial training exemption	$25
In-service alternative training credit	$25

B. Reinstatement fee.

1. The department shall collect a reinstatement fee for license renewal applications not received on or before the expiration date of the expiring license.

2. The reinstatement fee shall be 50% above and beyond the renewal fee of the license or any other credential issued by the department wherein a fee is established and renewal is required.

C. Dishonor of fee payment due to nonsufficient funds.

1. The department may suspend the license it has granted any person who submits a check or similar instrument for payment of a fee required by statute or regulation that is not honored by the financial institution upon which the check or similar instrument is drawn.

2. The suspension shall become effective upon receipt of written notice of the dishonored payment. Upon notification of the suspension, the licensee may request that the suspended license or authority be reinstated, provided payment of the dishonored amount plus any penalties or fees required under the statute or regulation accompanies the request. Suspension under this provision shall be exempt from the Administrative Process Act.

Part III
Licensing Procedures and Requirements

6VAC20-260-30. Bail enforcement agent eligibility.

A. Persons required to be licensed pursuant to subdivision 47 of § 9.1-102 of the Code of Virginia as a bail enforcement agent shall meet all licensure requirements in this section. Persons who carry or have access to a firearm while on duty must have a valid license with a firearms endorsement as described under 6VAC20-260-80. If carrying a handgun concealed, the person must also have a valid concealed handgun permit and the written permission of his employer pursuant to § 18.2-308 of the Code of Virginia.

B. Each person applying for a bail enforcement agent license shall meet the minimum requirements for eligibility as follows:

1. Be a minimum of 21 years of age;

2. Be a United States citizen or legal resident alien of the United States;

3. Have received a high school diploma or GED; and

4. Have successfully completed all initial training requirements, including firearms endorsement if applicable, requested pursuant to the compulsory minimum training standards in Part IV (6VAC20-260-120 et seq.) of this regulation.

C. The following persons are not eligible for licensure as a bail enforcement agent and may not be employed by or serve as agents for a bail enforcement agent:

1. Persons who have been convicted of a felony within the Commonwealth, any other state, or the United States, who have not been pardoned, or whose civil rights have not been restored.

2. Persons who have been convicted of any misdemeanor within the Commonwealth, any other state, or the United States within the preceding five years. This prohibition may be waived by the department, for good cause shown, so long as the conviction was not for one of the following or a substantially similar misdemeanor: carrying a concealed weapon, assault and battery, sexual battery, a drug offense, driving under the influence, discharging a firearm, a sex offense, or larceny.

3. Persons who have been convicted of any misdemeanor within the Commonwealth, any other state, or the United States, that is substantially similar to the following: brandishing a firearm or stalking. The department may not waive the prohibitions under this subdivision.

4. Persons currently the subject of a protective order within the Commonwealth or another state.

5. Employees of a local or regional jail.

6. Employees of a sheriff's office or a state or local police department.

7. Commonwealth's attorneys and any employees of their offices.

8. Employees of the Department of Corrections, Department of Criminal Justice Services, or a local pretrial or community-based probation services agency.

D. The exclusions in subsection C of this section shall not be construed to prohibit law enforcement from accompanying a bail enforcement agent when he engages in bail recovery.

6VAC20-260-40. Initial bail enforcement agent license application.

Prior to the issuance of any bail enforcement agent license, each agent applicant shall:

1. File with the department a completed application for such license on the form and in the manner provided by the department;

2. Provide the address of a physical location in Virginia where records required to be maintained pursuant to 6VAC20-260-230 are kept and available for inspection by the department. A post office box is not a physical location;

3. Successfully complete entry-level training, and firearms training if applicable, pursuant to the compulsory minimum training standards set forth under Part IV (6VAC20-260-120 et seq.) of this regulation;

4. Submit fingerprints to the department pursuant to 6VAC20-260-50; and

5. Submit the appropriate nonrefundable application processing fee to the department.

6VAC20-260-50. Fingerprint processing.

A. Each person applying for licensure as a bail enforcement agent shall submit to the department:

1. One completed fingerprint card provided by the department or another electronic method approved by the department;

2. A fingerprint processing application;

3. The applicable nonrefundable fee; and

4. All criminal history conviction information on a form provided by the department.

B. The department shall submit those fingerprints to the Virginia State Police for the purpose of conducting a Virginia Criminal History Records search and a National Criminal Records search to determine whether the person or persons has a record of conviction.

C. Fingerprint cards found to be unclassifiable will suspend action on the application pending the resubmittal of a classifiable fingerprint card. The applicant shall be so notified in writing and shall submit a new fingerprint card within 30 days before the processing of his application shall resume. After 30 days, the initial fingerprint application process will be required to include applicable application fees.

D. If the applicant is denied by DCJS, the department will notify the applicant by letter regarding the reasons for the denial.

6VAC20-260-60. Application sanctions/denial, probation, suspension and revocation.

A. The department may deny a license in which any person has been convicted in any jurisdiction of any felony. Any plea of nolo contendere shall be considered a conviction for the purposes of this regulation. The record of a conviction, authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted, shall be admissible as prima facie evidence of such conviction.

B. The department may deny a license in which any person (i) has not maintained good standing in every jurisdiction where licensed; (ii) has had his license denied upon initial application, suspended, revoked, surrendered, or not renewed; or (iii) has otherwise been disciplined in connection with a disciplinary action prior to applying for licensing in Virginia.

C. Any false or misleading statement on any state application or supporting documentation is grounds for denial or revocation and may be subject to criminal prosecution.

D. The department may deny licensure to a person for other just cause.

E. A licensee shall be subject to disciplinary action for violations or noncompliance with the Code of Virginia or this regulation. Disciplinary action shall be in accordance with procedures prescribed by the Administrative Process Act. The disciplinary action may include but is not limited to a letter of censure, fine, probation, suspension or revocation.

6VAC20-260-70. License issuance.

A. Upon completion of the initial license application requirements, the department may issue an initial license for a period not to exceed 24 months.

B. Each license shall be issued to the applicant named on the application and shall be valid only for the person named on the license. No license shall be assigned or otherwise transferred to another person.

C. Each licensee shall comply with all applicable administrative requirements and standards of conduct and shall not engage in any acts prohibited by applicable sections of the Code of Virginia and this regulation.

D. At the discretion of the department, a temporary license may be issued for a 30-day period while awaiting the results of the applicant's criminal history records search based on extenuating circumstances.

6VAC20-260-80. Firearms endorsement.

A. In addition to applying for a bail enforcement agent license, each applicant who carries or has access to a firearm while on duty must apply for such endorsement on a form and in the manner prescribed by the board and containing any information the board requires.

B. Prior to the issuance of a firearms endorsement, each applicant shall:

1. Successfully complete the entry-level firearms training pursuant to the compulsory minimum training standards as set forth in Part IV (6VAC20-260-120 et seq.) of this regulation; and

2. Submit the appropriate nonrefundable application processing fee to the department.

C. Upon completion of the application requirements, the department may issue a firearms endorsement for a period not to exceed 12 months.

D. Firearms endorsements may be reissued for a period not to exceed a period of 12 months when the applicant has met the following requirements:

1. Filed with the department a completed application for such endorsement on the form and in the manner provided by the department at least 30 days prior to expiration of the current endorsement;

2. Successfully completed the firearms retraining, pursuant to the compulsory minimum training standards set forth under Part IV (6VAC20-260-120 et seq.) of this regulation; and

3. Submitted the appropriate nonrefundable application processing fee to the department.

6VAC20-260-90. License renewal application.

A. The department should receive applications for licensure renewal at least 30 days prior to expiration. The department will provide a renewal notification to the last known mailing address of the licensed person. However, if a renewal notification is not received by the person, it is the responsibility of the person to ensure renewal requirements are filed with the department. License renewal applications must be received by the department and all license requirements must be completed prior to the expiration date or shall be subject to all applicable, nonrefundable renewal fees plus reinstatement fees. Outstanding fees or monetary penalties owed to DCJS must be paid prior to issuance of a renewal.

B. Each person applying for license renewal shall meet the minimum requirements for eligibility as follows:

1. Successfully complete the in-service training, and firearms retraining if applicable, pursuant to the compulsory minimum training standards set forth under Part IV (6VAC20-260-120 et seq.) of this regulation;

2. Be in good standing in every jurisdiction where licensed. This subdivision shall not apply to any probationary periods during which the person is eligible to operate under the license; and

3. Maintain eligibility pursuant to 6VAC20-260-30 B.

C. The department may renew a license when the department receives the following:

1. A properly completed renewal application provided by the department;

2. Fingerprint cards submitted pursuant to 6VAC20-260-50;

3. The applicable, nonrefundable license renewal fee; and

4. Proof of successful completion of the in-service training, pursuant to the compulsory minimum training standards set forth under Part IV (6VAC20-260-120 et seq.) of this regulation.

D. Upon completion of the renewal license application requirements, the department may issue a license for a period not to exceed 24 months.

E. Any renewal application received after the expiration date of a license shall be subject to the requirements set forth by the reinstatement provisions of this chapter.

6VAC20-260-100. Replacement state-issued identification.

A licensed person seeking a replacement state-issued photo identification shall submit to the department:

1. A properly completed application provided by the department; and

2. The applicable, nonrefundable application fee.

6VAC20-260-110. Reinstatement.

A. A bail enforcement agent license not renewed on or before the expiration date shall become null and void. Pursuant to the Code of Virginia, all such persons must currently be licensed with the department to provide bail enforcement agent services.

B. A renewal application must be received by the department within 60 days following the expiration date of the license in order to be reinstated by the department, providing all renewal requirements have been met. Prior to reinstatement, the following shall be submitted to the department:

1. The appropriate renewal application and completion of renewal requirements, including required training pursuant to this chapter; and

2. The applicable, nonrefundable reinstatement fee pursuant to this chapter and in accordance with 6VAC20-260-20 B.

The department shall not reinstate renewal applications received after the 60-day reinstatement period has expired. It is unlawful to operate without a valid license including during a reinstatement period.

C. No license shall be renewed or reinstated when all renewal application requirements are received by the department more than 60 days following the expiration date of the license. After that date, the applicant shall meet all initial application requirements, including applicable training requirements.

D. Following submittal of all reinstatement requirements, the department will process and may approve any application for reinstatement pursuant to the renewal process for the application.

Part IV
Compulsory Minimum Training Standards for Bail Enforcement Agents

Article 1
Training Requirements

6VAC20-260-120. Entry-level training.

A. Each bail enforcement agent as defined by § 9.1-186 of the Code of Virginia must meet the compulsory minimum training standards established in this part unless provided for otherwise in accordance with this regulation.

B. Training will be credited only if application for licensure is submitted to the department within 12 months of completion of training.

C. The compulsory minimum entry-level training hour requirement by category, excluding examinations, practical exercises and range qualification, shall be:

1. Bail Enforcement Core Training -- 40 hours.

2. Firearms Training -- 14 hours.

D. The compulsory minimum entry-level training course content, excluding examinations, mandated practical exercises and range qualification, shall be as provided in this subsection.

Core subjects. The entry-level curriculum sets forth the following areas identified as:

I. Orientation: ethics -- 2 hours

A. Ethics

1. Professionalism

2. Conflict of Interest

3. Code of Ethics

II. Law: Code of Virginia and Regulations; basic law; courts; and bail enforcement -- 12 hours + 1 practical exercise

A. Code of Virginia and Regulations

1. Definitions

2. Licensing Procedures and Requirements

3. Compulsory Minimum Training Standards

4. Standards of Practice and Prohibited Acts

5. Administrative Requirements/Standards of Conduct

6. Administrative Reviews, Complaints, Procedures

B. Basic Law

1. Legal Terminology and Definitions

2. Purpose and Function of Law

3. U.S. Constitution

a. Bill of Rights

b. Amendments

4. Code of Virginia

a. Bail Bonding Laws

b. Laws of Arrest

5. Landmark Cases

a. Taylor v. Taintor

b. Old Fugitive Slave Laws

6. Virginia Cases

7. Limitations and Liabilities

C. Courts

1. Federal Court System

a. Criminal

b. Civil

2. State Court System

a. Criminal

b. Civil

D. Bail Enforcement

1. Right to Arrest

2. Search and Seizure

3. Uniform Extradition Act

4. Virginia Extradition Procedures

5. Legal and Criminal Forms

III. Fugitive Recovery: investigative techniques; recovery procedures; agent survival; and apprehension of a fugitive -- 24 hours + 1 practical exercise

A. Investigative Techniques

1. Surveillance

2. Court Research

3. Law Enforcement Coordination

4. Interviewing

5. Impersonation and Misrepresentation

6. Reference Materials and Resource List

7. Skip Tracing Techniques

8. Fugitive Identification

B. Recovery Procedures

1. Pursuit

a. Foot

b. Vehicular

c. Other

2. Entry and Search

3. Perimeter/Interior Room Control

C. Agent Survival

1. Confrontation Management

2. Use of Force

3. Deadly Force

4. Escalation of Force

5. Emergency Procedures

D. Apprehension of a Fugitive

1. Compliant versus Noncompliant Procedures

2. Search of Person

a. Personal Items

b. Seizure of Contraband

3. Handcuffing Techniques

4. Rights of the Accused

5. Detainment and Transportation

6. Interstate Transport

7. False Arrest

IV. Remanding to Custody: legal detainment facilities; entering the jail or sally port; signing the bail piece/return to court; and hospital procedures for injuries -- 2 hours + 1 practical exercise

A. Legal Detainment Facilities

B. Entering the Jail or Sally Port

C. Signing the Bail Piece/Return to Court

D. Hospital Procedures for Injuries

V. Written Comprehensive Examination.

6VAC20-260-130. In-service training.

A. Each person licensed with the department as a bail enforcement agent shall complete the compulsory in-service training standards within the last 12 months preceding the expiration date of licensure.

B. The compulsory minimum in-service training course content by category, excluding examinations, practical exercises and range qualification, shall be as follows:

Bail enforcement core subjects:

1. Legal authority -- 2 hours

2. Job-related training -- 6 hours

Total hours -- 8 hours

6VAC20-260-140. Training exemption.

Persons who meet the statutory requirements as set forth in § 9.1-186 of the Code of Virginia may apply for a partial exemption from the compulsory training standards. Individuals requesting such partial exemption shall file an application furnished by the department and include the applicable, nonrefundable application fee. The department may issue such partial exemption on the basis of individual qualifications as supported by required documentation. Those applying for and receiving exemptions must comply with all regulations promulgated by the board. Each person receiving a partial exemption must apply to the department for registration within 12 months from the date of issuance; otherwise the partial exemption shall become null and void.

6VAC20-260-150. Entry-level training exemption.

A. Persons previously employed as law-enforcement officers for a local, state or federal government who have not terminated or been terminated from the employment more than five years prior to the application date must submit official documentation of the following with the application for partial exemption of the entry-level training requirements:

1. Completion of law-enforcement entry-level training; and

2. Five continuous years of law-enforcement employment, provided such employment as a law-enforcement officer was not terminated due to misconduct or incompetence.

B. Persons having previous bail enforcement agent training and five years continuous experience must submit official documentation of the following with the application for partial exemption:

1. Completion of previous bail enforcement agent training, which has been approved by the department and which meets or exceeds the compulsory minimum training standards promulgated by the board; and

2. Five years continuous experience in bail recovery, provided such experience did not end more then 12 months prior to submittal of licensure application.

6VAC20-260-160. In-service alternative training credit.

Persons who have completed training that meets or exceeds the compulsory minimum training standards promulgated by the board for the in-service training required for bail enforcement agents may be authorized credit for such training, provided the training has been completed within 12 months of the expiration date of the license period during which in-service training is required. Such training must be provided by a third party organization offering services or expertise for the particular training category. Official documentation of the following must accompany the application for in-service training credit:

1. Information regarding the sponsoring organization, including documentation regarding the instructor for each session;

2. An outline of the training session material, including the dates, times and specific subject matter;

3. Proof of attendance and successful completion; and

4. The applicable, nonrefundable application fee.

6VAC20-260-170. Prior firearms training exemption.

Persons having previous department-approved firearms training may be authorized credit for such training that meets or exceeds the compulsory minimum training standards for private security services business personnel, provided such training has been completed within the 12 months preceding the date of application. Official documentation of the following must accompany the application for partial in-service training credit:

1. Completion of department-approved firearms training; and

2. Qualification at a Virginia criminal justice agency, academy or correctional department.

6VAC20-260-180. Renewal extension.

A. An extension of the time period to meet in-service training requirements for renewal of a license may be approved only under specific circumstances that do not allow bail enforcement agents to complete the required renewal procedures within the prescribed time period. The following are the only circumstances for which extensions may be granted:

1. Extended illness;

2. Extended injury; or

3. Military deployment.

B. A request for extension shall:

1. Be submitted in writing, dated and signed by the licensee prior to the expiration date of the time limit required for completion of the requirements. This requirement may be waived by the department in cases of military deployment;

2. Indicate the projected date the person will be able to comply with the requirements; and

3. Include a copy of the physician's record of the injury or illness or a copy of the government orders.

C. No extension will be approved for licenses that have expired except in the cases involving military deployment.

D. Applications for additional extensions may be approved upon written request of the licensee.

E. Approved extensions may only be granted for a period not to exceed 12 months.

F. The bail enforcement agent shall be nonoperational during the period of extension.

Article 2
Firearms Training Requirements

6VAC20-260-190. General firearms training requirements.

Firearms training endorsement is required for all bail enforcement agents who carry or have access to a firearm while on duty. Each person who carries or has access to firearms while on duty shall qualify with each type of action and caliber of firearm to which he has access.

6VAC20-260-200. Firearms (handgun/shotgun) entry-level training.

All armed bail enforcement agents must satisfactorily complete the firearms classroom training, practical exercises and range training as prescribed in 6VAC20-171, Regulations Relating to Private Security Services, for handgun and for shotgun, if applicable, prior to the issuance of the firearms endorsement.

6VAC20-260-210. Firearms (handgun/shotgun) retraining.

On an annual basis all armed bail enforcement agents must requalify for a firearms endorsement by satisfactorily completing firearms classroom training, practical exercises and range training as prescribed in 6VAC20-171, Regulations Relating to Private Security Services, for handgun and for shotgun, if applicable.

Article 3
Training Sessions

6VAC20-260-220. Bail enforcement and firearms training sessions.

A. Training sessions will be conducted by private security services training schools certified or licensed under 6VAC20-171, Regulations Relating to Private Security Services, in accordance with requirements established in this chapter. Adherence to the administrative requirements, attendance and standards of conduct are the responsibility of the training school, training school director and instructor of the training session.

B. Administrative requirements.

1. In a manner approved by the department, a notification to conduct a training session shall be publicly accessible and submitted to the department upon request. All notifications shall be posted no less than seven calendar days prior to the beginning of each training session to include the date, time, instructors and location of the training session. The department may allow a session to be conducted with less than seven calendar days of notification with prior approval. A notification to conduct a training session shall be deemed to be in compliance unless the training school director is notified by the department to the contrary.

2. Notification of any changes to the dates, times, location or cancellation of a future training session must be made at least 24 hours in advance of the scheduled starting time of the class. In the event that a session must be cancelled on the scheduled date, the department must be notified immediately.

3. On a form provided by the department, the training school director shall issue an original training completion form and training certificate to each student who satisfactorily completes a training session no later than five business days following the training completion date.

4. In a manner approved by the department, the training school director shall maintain an original training completion roster and submit to the department upon request, affirming each student's successful completion of the session.

5. A written examination shall be administered at the conclusion of each entry-level training session. The examination shall be based on the applicable learning objectives. The student must attain a minimum grade of 70% for all entry-level training examinations to satisfactorily complete the training session.

6. Firearms classroom training shall be separately tested and graded. Individuals must achieve a minimum score of 70% on the firearms classroom training examination.

7. Failure to achieve a minimum score of 70% on the firearms classroom written examination will exclude the individual from the firearms range training.

8. To successfully complete the firearms range training, the individual must achieve a minimum qualification score of 75% of the scoring value of the target.

9. To successfully complete the bail enforcement agent entry-level training session, the individual must:

a. Successfully complete each of the three graded practical exercises required; and

b. Pass the written examination with a minimum score of 70%.

C. Attendance.

1. Individuals enrolled in an approved training session are required to be present for the hours required for each training session unless they have been granted a partial exemption to training from the department.

2. Tardiness and absenteeism will not be permitted. Individuals violating these provisions will be required to make up any training missed. Such training must be completed within 60 days after the completion of the training session or at the next available session offered by the training school. Individuals not completing the required training within this period are required to complete the entire training session.

3. Individuals who do not successfully complete the compulsory minimum training standards of the training session shall not be reported to the department except where required pursuant to this chapter.

4. Each individual attending an approved training session shall comply with the regulations promulgated by the board and any other rules within the authority of the training school. If the training school director or instructor considers a violation of the rules detrimental to the training of other students or to involve cheating on examinations, the training school director or instructor may expel the individual from the school. Notification of such action shall immediately be reported to the employing firms and the department.

D. Standards of conduct.

1. The training school, training school director and instructor shall at all times conform to the application requirements, administrative requirements and standards of conduct established for certification as a training school and instructor.

2. Training sessions will be conducted by certified instructors or other individuals authorized to provide instruction pursuant to this chapter.

3. Training sessions will be conducted utilizing lesson plans developed, including at a minimum the compulsory minimum training standards established pursuant to this chapter.

4. Instruction shall be provided in no less than 50-minute classes.

5. Training sessions may not exceed nine hours of classroom instruction per day. Range qualification and practical exercises shall not be considered classroom instruction; however, total training, including the maximum allotment of nine hours classroom instruction and applicable range qualification and practical exercises, shall not exceed 12 hours per day. This does not include time allotted for breaks, meals and testing.

6. All audiovisual training aids must be accompanied by a period of instruction where the instructor reviews the content of the presentation and the students are provided the opportunity to ask questions regarding the content.

7. A training session must adhere to the minimum compulsory training standards and must be presented in its entirety. Training school directors may require additional hours of instruction, testing or evaluation procedures.

8. A training session must provide accurate and current information to the students.

9. Mandated training conducted not in accordance with the Code of Virginia and this chapter is null and void.

10. A duplicate set of instructor course materials including all student materials shall be made available to any department inspector during the training session, if requested.

Part V
Recordkeeping Standards and Reporting Requirements

6VAC20-260-230. Reporting standards and requirements.

A. Each licensed bail enforcement agent shall report within 30 calendar days to the department any change in his residence, name, or business name or business address, and ensure that the department has the names and fictitious names of all companies under which he carries out his bail recovery business.

B. Each licensed bail enforcement agent arrested or issued a summons for any crime shall report such fact within 30 calendar days to the department and shall report to the department within 30 days the facts and circumstances regarding the final disposition of his case.

C. Each licensed bail enforcement agent shall report to the department within 30 calendar days of the final disposition any administrative action taken against him by another governmental agency in this Commonwealth or in another jurisdiction. Such report shall include a copy of the order, consent to order or other relevant legal documents.

D. Each licensed bail enforcement agent shall report to the department within 24 hours any event in which he discharges a firearm during the course of his duties.

E. The bail enforcement agent shall retain, for a minimum of three calendar years from the date of a recovery, copies of all written documentation in connection with the recovery of a bailee pursuant to 6VAC20-260-260.

Part VI
Administrative Requirements; Standards of Conduct

6VAC20-260-240. General requirements.

All bail enforcement agents are required to maintain administrative requirements and standards of conduct as determined by the Code of Virginia, department guidelines and this regulation.

6VAC20-260-250. Professional conduct standards; grounds for disciplinary actions.

A. Any violations of the restrictions or standards under the Code of Virginia or this regulation shall be grounds for placing on probation, refusal to issue or renew, sanctioning, suspension or revocation of the bail enforcement agent's license. A licensed bail enforcement agent is responsible for ensuring that his employees, partners and individuals contracted to perform services for or on his behalf comply with all of these provisions and do not violate any of the restrictions that apply to bail enforcement agents. Violations by a bail enforcement agent's employee, partner, or agent may be grounds for disciplinary action against the bail enforcement agent, including probation, suspension or revocation of license.

B. A licensed bail enforcement agent shall not:

1. Engage in any fraud or willful misrepresentation, or provide materially incorrect, misleading, incomplete or untrue information in applying for an original license or renewal of an existing license, or in submitting any documents to the department.

2. Use any letterhead, advertising, or other printed matter in any manner representing that he is an agent, employee, or instrumentality of the federal government, a state, or any political subdivision of a state.

3. Impersonate, permit or aid and abet any employee to impersonate a law-enforcement officer or employee of the United States, any state, or a political subdivision of a state.

4. Use a name different from that under which he is currently licensed for any advertising, solicitation, or contract to secure business unless the name is an authorized fictitious name.

5. Coerce, suggest, aid and abet, offer promise of favor, or threaten any person to induce that person to commit any crime.

6. Give or receive, directly or indirectly, any gift of any kind to any nonelected public official or any employee of a governmental agency involved with the administration of justice, including but not limited to law-enforcement personnel, magistrates, judges, jail employees, and attorneys. De minimis gifts, not to exceed $50 per year per recipient, are acceptable provided the purpose of the gift is not to directly solicit business or would otherwise be a violation of department regulations or the laws of the Commonwealth.

7. Knowingly violate, advise, encourage, or assist in the violation of any statute, local jurisdictional law, court order, or injunction in the course of conducting activities regulated under this chapter.

8. Solicit business for an attorney in return for compensation.

9. Willfully neglect to render to a client services or a report as agreed between the parties and for which compensation has been paid or tendered in accordance with the agreement of the parties, but if the bail enforcement agent chooses to withdraw from the case and returns the funds for work not yet done, no violation of this section exists.

10. Fail to comply with any of the statutory or regulatory requirements governing licensed bail enforcement agents.

11. Fail or refuse to cooperate with any investigation by the department.

12. Fail to comply with any subpoena issued by the department.

13. Employ or contract with any unlicensed or improperly licensed person or agency to conduct activities pertaining to bail enforcement services regulated in the Code of Virginia or this regulation, if the licensure status was known or could have been ascertained by reasonable inquiry.

14. Solicit or receive a bribe or other consideration in exchange for failing to recover or detain a bailee.

15. Provide false or misleading information to representatives of the department.

C. The department shall have the authority to place on probation, suspend or revoke a bail enforcement agent's license if an agent is arrested or issued a summons for a criminal offense, or becomes the subject of a protective order.

6VAC20-260-260. Recovery of bailees; methods of capture; standards and requirements; limitations.

A. During the recovery of a bailee, a bail enforcement agent shall have a copy of the relevant recognizance for the bailee. He shall also have written authorization from the bailee's bondsman, obtained prior to effecting the capture. The department shall develop the written authorization form to be used in such circumstances.

B. A bail enforcement agent shall not enter a residential structure without first verbally notifying the occupants who are present at the time of the entry.

C. Absent exigent circumstances, a bail enforcement agent shall give prior notification of at least 24 hours to local law enforcement or state police of the intent to apprehend a bailee. In all cases, a bail enforcement agent shall inform local law enforcement within 60 minutes of capturing a bailee.

D. In the apprehension of a bailee, the bail enforcement agent shall provide a written inventory of items taken into possession to both the bailee as well as the legal detainment facility.

E. A bail enforcement agent shall not utilize a canine or security rifle in the performance of bail recovery.

F. A bail enforcement agent may not transfer a bailee to an unlicensed bail bondsman or bail enforcement agent within the Commonwealth of Virginia.

G. A bail enforcement agent shall not break any laws of the Commonwealth in the act of apprehending a bailee.

H. A bail enforcement agent shall adhere to the recovery requirements pursuant to § 19.2-149 of the Code of Virginia.

I. A bail enforcement agent must complete and maintain the information on the recovery of a bailee on a form prescribed by the department.

6VAC20-260-270. Uniforms and identification; standards and restrictions.

A. A bail enforcement agent shall not wear, carry, or display any uniform, badge, shield, or other insignia or emblem that implies he is an agent of state, local, or federal government.

B. A bail enforcement agent shall wear or display only identification issued by, or whose design has been approved by, the department.

Part VII
Complaints, Department Actions, Adjudication

Article 1
Complaints

6VAC20-260-280. Submittal requirements.

A. Any aggrieved or interested person may file a complaint against any person whose conduct and activities are regulated or required to be regulated by the board. The complaint must allege a violation of the law governing bail enforcement services or this regulation.

B. Complaints may be submitted:

1. In writing, or on a form provided by the department, by a signed complainant;

2. In writing, submitted anonymously, that provide sufficient detailed information for the department to conduct an investigation; or

3. Telephonically, providing the complaint alleges activities that constitute a life-threatening situation, have resulted in personal injury or loss to the public or to a consumer, or may result in imminent harm or personal injury, and that provide sufficient detailed information for the department to conduct an investigation.

6VAC20-260-290. Department investigation.

A. The department may initiate or conduct an investigation based on any information received or action taken by the department to determine compliance with the Code of Virginia and this regulation.

B. Documentation.

1. Persons regulated or required to be regulated by this regulation pursuant to the Code of Virginia are required to provide department investigators with any and all records required to be maintained by this regulation.

a. This shall not be construed to authorize the department to demand records protected under applicable federal and state laws. If such records are necessary to complete an investigation, the department may seek a subpoena to satisfy the request.

b. The department shall endeavor to review, and request as necessary, only those records required to verify alleged violations of compliance with the Code of Virginia and this regulation.

2. The department shall endeavor to keep any documentation, evidence or information on an investigation confidential until such time as adjudication has been completed, at which time information may be released upon request pursuant to applicable federal and state laws, rules or regulations.

Article 2
Department Actions

6VAC20-260-300. Penalties: criminal and monetary.

A. Any person who engages in bail recovery in the Commonwealth without a valid license issued by the department is guilty of a Class 1 misdemeanor. A third conviction under this section is a Class 6 felony.

B. Any person who violates any statute or board regulation who is not criminally prosecuted shall be subject to the monetary penalty provided in this section. If the board determines that a respondent is guilty of the violation complained of, the board shall determine the amount of the monetary penalty for the violation, which shall not exceed $2,500 for each violation. The penalty may be sued for and recovered in the name of the Commonwealth.

6VAC20-260-310. Disciplinary action; sanctions; publication of records.

A. Each person subject to jurisdiction of this regulation who violates any statute or regulation pertaining to bail enforcement services shall be subject to sanctions imposed by the department regardless of criminal prosecution.

B. The department may impose any of the following sanctions, singly or in combination, when it finds the respondent in violation or in noncompliance of the Code of Virginia or of this regulation:

1. Letter of reprimand or censure;

2. Probation for any period of time;

3. Suspension of license or approval granted, for any period of time;

4. Revocation;

5. Refusal to issue or renew a license or approval;

6. Fine not to exceed $2,500 per violation as long as the respondent was not criminally prosecuted; or

7. Remedial training.

C. The department may conduct hearings and issue cease and desist orders to persons who engage in activities prohibited by this regulation but do not hold a valid license, certification or registration. Any person in violation of a cease and desist order entered by the department shall be subject to all of the remedies provided by law and, in addition, shall be subject to a civil penalty payable to the party injured by the violation.

D. The director (chief administrative officer of the department) may summarily suspend a license under this regulation without a hearing, simultaneously with the filing of a formal complaint and notice for a hearing, if the director finds that the continued operations of the licensee would constitute a life-threatening situation, or has resulted in personal injury or loss to the public or to a consumer, or which may result in imminent harm, personal injury or loss.

E. All proceedings pursuant to this section are matters of public record and shall be preserved. The department may publish a list of the names and addresses of all licensees whose conduct and activities are subject to this regulation and have been sanctioned or denied licensure or approval.

6VAC20-260-320. Fines: administrative and investigative costs.

The department may recover costs of any investigation and adjudication of any violations of the Code of Virginia or regulations that result in a sanction, including fine, probation, suspension, revocation or denial of any license. Such costs shall be in addition to any monetary penalty that may be imposed.

Article 3
Adjudication

6VAC20-260-330. Hearing process.

Following a preliminary investigative process, the department may initiate action to resolve the complaint through an informal fact-finding conference or formal hearing as established in this regulation. Pursuant to the authority conferred in § 9.1-141 C 6 of the Code of Virginia and in accordance with the procedures set forth by the Administrative Process Act and the procedures prescribed in this regulation, the department is empowered to receive, review, investigate and adjudicate complaints concerning the conduct of any person whose activities are regulated by the board. The board will hear and act upon appeals arising from decisions made by the director. In all case decisions, the Criminal Justice Services Board shall be the final agency authority.

6VAC20-260-340. Informal fact-finding conference.

The purpose of an informal fact-finding conference is to resolve allegations through informal consultation and negotiation. Informal fact-finding conferences shall be conducted in accordance with § 2.2-4019 of the Code of Virginia. The respondent, the person against whom the complaint is filed, may appeal the decision of an informal fact-finding conference and request a formal hearing, provided that written notification is given to the department within 30 days of the date the informal fact-finding decision notice was served, or the date it was mailed to the respondent, whichever occurred first. In the event the informal fact-finding decision was served by mail, three days shall be added to that period.

6VAC20-260-350. Formal hearing.

A. Formal hearing proceedings may be initiated in any case in which the basic laws provide expressly for a case decision or in any case to the extent the informal fact-finding conference has not been conducted or an appeal thereto has been timely received. Formal hearings shall be conducted in accordance with § 2.2-4020 of the Code of Virginia. The findings and decision of the director resulting from a formal hearing may be appealed to the board.

B. After a formal hearing pursuant to § 2.2-4020 of the Code of Virginia wherein a sanction is imposed to fine, or to suspend, revoke or deny issuance or renewal of any license or approval, the department may assess the holder thereof the cost of conducting such hearing when the department has final authority to grant such license, registration, certification or approval, unless the department determines that the offense was inadvertent or done in good faith belief that such act did not violate a statute or regulation. The cost shall be limited to (i) the reasonable hourly rate for the hearing officer and (ii) the actual cost of recording the proceedings. This assessment shall be in addition to any fine imposed by sanctions.

6VAC20-260-360. Appeals.

The findings and the decision of the director may be appealed to the board provided that written notification is given to the attention of the Director, Department of Criminal Justice Services, within 30 days following the date notification of the hearing decision was served or the date it was mailed to the respondent, whichever occurred first. In the event the hearing decision is served by mail, three days shall be added to that period. (Rule 2A:2 of Rules of the Virginia Supreme Court.)

6VAC20-260-370. Court review; appeal of final agency order.

A. The final administrative decision may be appealed pursuant to § 2.2-4026 of the Code of Virginia.

B. Notification shall be given to the attention of the Director, Department of Criminal Justice Services, in writing within 30 days of the date notification of the board decision was served or the date it was mailed to the respondent, whichever occurred first. In the event the board decision was served by mail, three days shall be added to that period. (Rule 2A:2 of Rules of the Virginia Supreme Court.)

C. During all judicial proceedings incidental to such disciplinary action, the sanctions imposed by the board shall remain in effect unless the court issues a stay of the order.

[ FORMS (6VAC20-260)

Initial Bail Enforcement Agent License Application, ORA_EA (rev. 04/09)

Renewal Bail Enforcement Agent License Application, ORA_ER (rev. 04/09)

Fingerprint Processing Application, ORA_FP (rev. 04/09)

Criminal History Supplemental Form, ORA_CHS (rev. 04/09)

Bail Enforcement Agent Firearms Endorsement Application, BEA_RF (rev. 04/09)

Bail Enforcement Agent Recovery Form, ORA_BRF (rev. 04/09)

Bail Enforcement Recovery Authorization Form, OAR_RAF (rev. 04/09)

Bail Enforcement Agent Replacement Photo ID Application, BEA_RPI (rev. 04/09)

Bail Enforcement Agent Firearms Endorsement Replacement/Additional Firearms Category Application, BEA_RF2 (rev.04/09) ]

Title of Regulation: 6VAC35-30. Regulations for State Reimbursement of Local Juvenile Residential Facility Costs (amending 6VAC35-30-10, 6VAC35-30-20, 6VAC35-30-40, 6VAC35-30-60 through 6VAC35-30-190; adding 6VAC35-30-35, 6VAC35-30-45, 6VAC35-30-65; repealing 6VAC35-30-30, 6VAC35-30-50).

Statutory Authority: §§ 16.1-309.5, 16.1-322.7, and 66-10 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 13, 2009.

Agency Contact: Janet VanCuyk, Regulatory Coordinator, Department of Juvenile Justice, 700 East Franklin Street, 4th Floor, Richmond, VA 23219, telephone (804) 371-4097, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.

Basis: The Board of Juvenile Justice is entrusted with general authority to promulgate regulations by § 66-10 of the Code of Virginia, which states the board may "promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by the Director or the Department."

Additionally, the legal authority of the Board of Juvenile Justice to promulgate regulations governing reimbursement of construction costs for local juvenile residential facilities is found in § 16.1-309.5 C of the Code of Virginia. This section states that "the Board shall promulgate regulations to include criteria to serve as guidelines in evaluating requests for such reimbursements and to ensure the geographically equitable distribution of state funds for such purpose."

Moreover, § 16.1-322.7 of the Code of Virginia requires the Board of Juvenile Justice to promulgate regulations governing the schedule for and manner of state reimbursement to the cities or counties or any combination thereof for costs of construction of local or regional detention homes. It further requires regulations regarding the minimum standards for the construction, equipment, administration, and operation of the facilities.

Purpose: The Regulations Governing State Reimbursement of Local Juvenile Residential Facility Costs, 6VAC35-30, sets forth the process by which the department and the Board of Juvenile Justice will approve the Commonwealth's reimbursement of a portion of a locality's cost of constructing a juvenile residential facility. It establishes the process for evaluating requests from localities for state reimbursement of local juvenile residential facility construction costs, including criteria to assess need, priorities for construction projects, and a methodology for determining appropriate costs. The regulation also provides the basis for the department's "Guidelines for Minimum Standards in Design and Construction of Juvenile Facilities," which addresses technical matters of construction and furnishings.

The last comprehensive review of the Regulations Governing State Reimbursement of Local Juvenile Residential Facility Costs was completed on September 9, 1992. Since that time, there has been a restructuring, both in the Department of Juvenile Justice and in localities. Additionally, many of the terms used in the regulation are outdated. Thus, the regulation was reviewed in light of current practices, and it was determined that a comprehensive review of and substantive changes to the regulation are necessary to streamline the process for localities requesting reimbursement that keeps with the goals of enhancing the clarity of the regulation and achieving improvements that will be reasonable, prudent, and will not impose any unnecessary burden on its regulants or the public.

Substance: The following changes have been proposed for the Regulations Governing State Reimbursement of Local Juvenile Residential Facility Costs:

1. 6VAC35-30-10: Updated referenced statutes, regulations, and documents.

2. 6VAC35-30-20:

a. Updated the definitions section and terms used, including (i) removing unused terms and (ii) clearly defining components of the needs assessment and planning study and detailing what constitutes a substantive change.

b. Removed square footage reference in the definition of area; this is addressed in 6VAC35-30-65.

c. Added definitions for (i) board-approved funding formula; (ii) efficiency ratio; (iii) project; and (iv) sponsor.

3. 6VAC35-30-30: Deleted this section as the statutory references are provided in the regulatory footnotes.

4. 6VAC35-30-35 (new): Added a prescreening step to the process to ensure that all projects subject to the regulation are identified early in the planning process.

5. 6VAC35-30-40: Added language to clarify the distinct phases of the process and the responsibilities of each party during these phases.

6. 6VAC35-30-45 (new): Added a section to clarify the sponsor/locality's responsibilities in the event of a legislative moratorium on construction/reimbursement.

7. 6VAC35-30-50: Deleted this section as it was not in the correct order of the process and was duplicative of other parts of the regulation.

8. 6VAC35-30-60:

a. Moved the board-approved funding formula to its own section.

b. Added an additional component of the board's review - review of efficiency.

c. Added a provision to allow the board to adjust the amount being requested for reimbursement when (i) functional areas are not included or are planned at a nonconforming size; (ii) support service areas are at a nonconforming size; (iii) the efficiency ratio is not appropriate; and (iv) the facility includes areas for extraordinary program activity. This section replaces a statewide average absolute limitation (from footnote i in appendix 2e of the Step-by-Step Procedures for Approval and Reimbursement for Local Facility Construction, Enlargement, and Renovation).

d. Clarified that phased reimbursements may be utilized.

9. 6VAC35-30-65 (new):

a. Moved the funding formula currently in this section from 6VAC35-30-60.

b. Made the following changes from the previous formula:

(1) Removed the requirement to convert the per-bed costs using per-bed area allowances based on the average gross square footage of actual and proposed local facilities in Virginia. The cost per square footage is already regionally accounted for using the R.S. Means location factor, and the proposed language will increase board oversight for efficiency in 6VAC35-30-60.

(2) Changed the contingency percentage from 3.0% to 10%. Since this formula governs the Schematic Design Document, the 10% would impose the same standard used for state construction at this stage of design.

(3) Added an inflation factor into the calculation for consistency with the practices of the Department of Corrections.

(4) Changed the maximum square footage requirement from 600 square feet per bed for all facilities to (i) 700 for facilities up to 35 residents; (ii) 650 for facilities of 36 to 79 residents; and (iii) 550 for facilities with 80 or more residents.

10. 6VAC35-30-70: Removed funding priorities as the Code of Virginia requires priority to multijurisdictional facilities. The current regulation requires a needs assessment, and the proposed regulation allows the board to conduct efficiency analyses.

11. 6VAC35-30-80: Included timeframes for communications.

12. 6VAC35-30-90: Made technical changes to update the references and clarify the steps in the process.

13. 6VAC35-30-100: Made technical changes including clarifying the documents required at this stage.

14. 6VAC35-30-110: Made technical change to the title.

15. 6VAC35-30-120: Amended and provided the timeframes for communications between the department and the sponsor.

Added a provision that the department's failure to respond would serve as acceptance of the recommendation.

16. 6VAC35-30-130: Stated the timeframe for submission of inspection and progress reports.

Added a provision that the department's failure to respond would serve as acceptance of the inspection and progress report.

Added a provision that the sponsor's failure to timely submit the inspection or progress reports may constitute grounds to deny reimbursement.

Added a provision that the sponsor's failure to obtain approval of a substantive change may constitute grounds to deny reimbursement.

17. 6VAC35-30-140: Clarified the required components of the schedule for final inspection.

18. 6VAC35-30-150 through 6VAC35-30-180: Made technical changes.

19. 6VAC35-30-190: Added a provision that a failure to comply with the regulation may result in the failure to obtain board certification or department approval to house juveniles in the facility.

20. Documents Incorporated by Reference: Updated the title of the document.

Issues: The proposed amendments have been vetted through an advisory committee consisting of individuals representing detention homes across the Commonwealth who would be affected by the changes in reimbursement for juvenile residential facilities. Having clear, concise, and consistent requirements for localities seeking reimbursement for construction of local facilities fosters improved communication between the department, the Commonwealth, and localities.

The proposed amendments should pose no disadvantage to the public or the Commonwealth. In fact, providing the board with additional authority to review requests for space efficiency and appropriate use of space will promote improved functionality in future construction projects.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a part of a periodic review process, the Board of Juvenile Justice (Board) proposes to amend its Regulations for State Reimbursement of Local Juvenile Facility Costs. Specifically, the Board proposes to:

• Enumerate phases of the reimbursement process and the responsibilities of each party during these phases,

• Clarify communication and submission timeframes for acceptance of bids for construction and add language that stipulates the Department of Juvenile Justice's (DJJ's) failure to respond to bid information will serve as acceptance of the locality's recommendation,

• Specify that failure to submit the inspection or progress reports in a timely fashion or failure to obtain approval of a substantive change could constitute grounds to deny reimbursement,

• Clarify the required components of the final inspection schedule,

• Clarify and add structure to pre-screening step to ensure that all projects subject to the regulation are identified early in the planning process,

• Incorporate a review of efficiency as one component of the reimbursement process and specify that the Board may adjust the costs of construction approved for reimbursement subject to the outcome of that efficiency review and a needs assessment already in current regulations,

• Increase the contingency percentage from 3.0% to 10%,

• Allow for a state-set inflation (deflation) factor to be applied to reimbursements, and

• Replace a 600 square feet per bed reimbursement cap with a three tiered cap.

Result of Analysis. The benefits likely exceed the costs for most proposed changes. There is insufficient evidence to decide whether benefits exceed costs for several other proposed changes.

Estimated Economic Impact. The Board last updated the regulations that govern reimbursement to localities for construction of juvenile facilities in 1992. Pursuant to periodic review requirements, the Board is now proposing many changes to these regulations. Most of these changes are intended to clarify existing regulatory language or recognize Board policy/current practice. Regulated entities are very unlikely to incur any costs on account of proposed changes that fall into this category. Regulated entities will receive a benefit to the extent that these changes allow them to better understand the rules to which they must adhere. The Board also proposes several substantive changes to portions of these regulations that govern inflation and contingency adjustments to reimbursements as well as per bed reimbursement rates.

Current regulations allow the Board to adjust reimbursement payments on a contingency basis by up to 3.0% of the initial estimate of construction costs. This contingency percentage can be added to account for changes in construction cost that occur between the time plans are submitted and the time (sometimes years later) when the planned facility is actually built. The Board is also currently allowed to adjust reimbursements by a "change order" amount at the end of construction.

The Board proposes to increase the contingency percentage to 10% and add a new inflation factor. The inflation factor is set by the state and is "a yearly market inflation rate applied from January 1 of the year of the submitted design through the midpoint of construction, compounded."

These two changes may increase the state's share of construction costs for local juvenile detention facilities while reducing locality expenditures on these projects (since localities currently must cover any increased costs over the current 3.0% contingency amount plus the "change order"). This will likely benefit localities that will have to use fewer local dollars to build required facilities but will also likely cost the state more general revenue dollars. To the extent that DJJ can make these building projects more efficient through their review process, fewer tax dollars overall will likely be spent on these facilities. If, however, localities are already building as efficiently as the state would require, then these regulatory changes will only serve to shift the costs of these facilities from the specific localities where they will be located to state taxpayers who likely will not directly benefit from the building of any given facility because they do not live in the affected locality.

Current regulations impose a 600 square feet per bed reimbursement cap on all planned facility construction no matter how many beds the facility will be built for. This cap does not, however, account for economies of scale that may allow larger facilities to be built more cheaply. A large facility will not, for instance, require twice as many offices or kitchens as a facility half its size.

To account for these economies of scale, the Board proposes to institute a three tiered per bed cap. Facilities that will house 35 or fewer juveniles will have an area allowance cap of 700 square feet per bed. Facilities that will house between 36 and 79 juveniles will have a cap of 650 square feet per bed. Facilities that will house 80 or more juveniles will have a cap of 550 square feet per bed.

This change will increase reimbursement for smaller facilities and decrease reimbursement for larger facilities. Comparing two recently built facilities will give a rough idea of the reimbursement changes. The Piedmont detention facility was built to house 20 juveniles and has 669 square feet per bed. Under the existing allowance, the locality had to cover all costs for the additional 69 feet per bed. Under the new allowance, all square footage would have been subject to the reimbursement formula. The Virginia Beach detention home was built to house 90 juveniles and has 594 square feet per bed. Under the existing allowance, all square footage was subject to the reimbursement formula. Under the new allowance, the cost of 44 square feet per bed would be purely the responsibility of the building locality. DJJ reports, based on bed size of recently built facilities, that total state costs under the proposed formulas would have been reduced by roughly $63,000 for the last seven facilities built. The new maximum allowances are likely more reflective of the actual square footage needs for facilities and may encourage larger facilities to be built with an eye toward greater efficiency.

Businesses and Entities Affected. These proposed regulations will affect localities that intend to build juvenile detention facilities. DJJ reports that there are 24 detention facilities in the state currently. One locality has recently submitted a needs assessment for a new building project.

Localities Particularly Affected. Localities that want to build or expand juvenile detention facilities will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs that are directly attributable to this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs that are directly attributable to this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The responsible Virginia Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's economic impact analysis of 6VAC35-30, Regulations Governing State Reimbursement of Local Juvenile Residential Facility Costs. The agency has no comment regarding DPB's analysis.

Summary:

The proposed amendments (i) enumerate phases of the reimbursement process and the responsibilities of each party during these phases; (ii) clarify communication and submission timeframes for acceptance of bids for construction and add language that stipulates the Department of Juvenile Justice's failure to respond to bid information will serve as acceptance of the locality's recommendation; (iii) specify that failure to submit the inspection or progress reports in a timely fashion or failure to obtain approval of a substantive change could constitute grounds to deny reimbursement; (iv) clarify the required components of the final inspection schedule; (v) clarify and add structure to the prescreening step to ensure that all projects subject to the regulation are identified early in the planning process; (vi) incorporate a review of efficiency as one component of the reimbursement process and specify that the board may adjust the costs of construction approved for reimbursement subject to the outcome of that efficiency review and a needs assessment already in current regulations; (vii) increase the contingency percentage used to calculate estimated construction costs from 3.0% to 10%; (viii) allow for a state-set inflation (deflation) factor to be applied to reimbursements; and (ix) replace a 600 square feet per bed reimbursement cap with a three-tiered cap based on the number of residents.

CHAPTER 30
REGULATIONS FOR GOVERNING STATE REIMBURSEMENT OF LOCAL JUVENILE RESIDENTIAL FACILITY COSTS

Part I
General Information

6VAC35-30-10. Introduction.

The state Board of Youth and Family Services is charged with the responsibility for approving all requests from localities for financial assistance relative to the development and operation of new programs and services; for purchase of property; and for construction, enlargement, or renovation of detention homes, group homes or other residential care facilities for children; whether publicly or privately constructed.

The Department of Youth and Family Services exercises oversight responsibility in the establishment and maintenance of programs, services and residential care facilities for children.

The Office of Capital Outlay Management within the Department of Youth and Family Services is responsible for architectural and engineering review of residential care facilities which are constructed, enlarged or renovated, and reimbursed with state funds.

Section 16.1-309.5 of the Code of Virginia requires the Board of Juvenile Justice and the Governor to evaluate all plans for, specifications of, and requests for reimbursement from a locality or localities for the construction, enlargement, purchase, or renovation of projects governed by this chapter. No reimbursements for costs and construction for such projects shall be made unless the plans, specifications, and construction are approved by the board and the Governor in accordance with the provisions contained herein.

Section 16.1-309.9 of the Code of Virginia further mandates the board to approve minimum standards for the construction and equipment of detention homes and other facilities governed by this chapter. Any such project shall be subject to this regulation and all applicable statutes, regulations, and guidance documents, including, but not limited to, the following:

1. The Virginia Public Procurement Act, Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2 of the Code of Virginia;

2. The Construction and Professional Services Manual (CPSM), October 2004, issued by the Department of General Services, Division of Engineering and Building;

3. The Step-by-Step Procedures for Approval and Reimbursement for Local Facility Construction, Enlargement, and Renovation, March 2001, issued by the Department of Juvenile Justice; and

4. The Agency Procurement and Surplus Property Manual (1VAC30-130), issued by the Department of General Services, Division of Purchases and Supply.

Approval of projects for which state funding is requested is vested by the Governor in the Office of the Secretary of Public Safety. Such projects are best accomplished as a cooperative venture between a locality or localities and the Department of Youth and Family Services Juvenile Justice. Using Board of Youth and Family Services (BYFS) approved and American Correctional Association (ACA) standards regulations promulgated by the board and by working together as partners from project planning to through project construction and program implementation, the locality or localities and the department ensure that an the optimum number of children are provided high quality services at a minimum cost to the locality or localities and to the Commonwealth.

As a basis for this regulation:

1. The Virginia Public Procurement Act applies generally to every public body in the Commonwealth which § 11-37 of the Code of Virginia defines to include any legislative, executive or judicial body, agency, office, department, authority, post, commission, committee, institution, board or political subdivision created by law to exercise some sovereign power or to perform some governmental duty. Therefore, the Commonwealth of Virginia Agency Procurement and Surplus Property Manual, current edition, will apply when construction of juvenile facilities is reimbursed by state funds.

2. The Agency Procurement and Surplus Property manual incorporates the Commonwealth of Virginia Capital Outlay manual for policy and guidelines for Capital Outlay Projects. Generally, construction or renovation of juvenile facilities would constitute Capital Outlay. The Department of Youth and Family Services shall therefore apply the Commonwealth of Virginia Capital Outlay manual, current edition, whenever reimbursement with state funds is requested. Special emphasis on Chapters V, VIII, and X shall be considered whenever reimbursement is requested.

3. The Department of Youth and Family Services does not intend to replace or relieve responsibilities of the architectural and engineering firms and applicable regulatory authorities (i.e., Building Official, State Fire Marshal, etc.).

For the purposes of this chapter and reimbursement recommendations to the Secretary and the Governor, the Department of Youth and Family Services (DYFS) or its designee shall be the reviewing authority.

Part II
Definitions and Legal Basis

6VAC35-30-20. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"ACA" means American Correctional Association.

"Area allowance per bed" means the gross square footage of the facility divided by the facility's design capacity as provided herein.

"Architectural/Engineering (A/E) services" means an individual or firm that is licensed by the Virginia Department of Commerce to provide professional services appropriate for the specific project, and is hired by the owner to provide those specific services for the project.

"Board" means the Virginia Board of Youth and Family Services Juvenile Justice.

"Board-approved funding formula" means the method by which construction costs are calculated as provided for in 6VAC35-30-60.

"Board approved standards regulation" means standards a regulation or section or subsections thereof promulgated and approved by the Board of Youth and Family Services board. These standards include:

1. Chapter 50 of Title 6 (6VAC35-50-10 et seq.), Standards for Interdepartmental Regulation of Residential Facilities for Children;

2. Chapter 100 of Title 6 (6VAC35-100-10 et seq.), Standards for Secure Detention; and

3. Chapter 40 of Title 6 (6VAC35-40-10 et seq.), Standards for Predispositional and Post-Dispositional Group Homes.

"Department" or DYFS "DJJ" means the Department of Youth and Family Services Juvenile Justice.

"Efficiency ratio" means the proportion of a building's net usable area to its gross floor area.

"Enlargement" or "Expansion" means to expand an existing local facility by constructing additional areas.

"Furnishings and equipment" means built-in equipment or fixtures normally included in a structure at the time of construction.

"Local facility" means a juvenile residential facility which that is or may be regulated by the board and is owned, maintained, or operated by any political subdivision or combination of political subdivisions of the Commonwealth, or a privately owned or operated juvenile residential facility which that has contracted with any political subdivision or combination of political subdivisions of the Commonwealth and is or may be regulated by the board.

"Locality's representative" means an individual who is licensed by the Virginia Department of Commerce as an architect or engineer.

"Needs assessment" means an evaluation of trends and factors at the local or regional level which that may affect current and future local facility needs, and the assessment of local facilities and nonresidential programs available to meet such needs. The needs assessment for each proposed project shall identify the target population, the specific need of the target population the project is seeking to address, why the specific need cannot be met with existing resources, all alternatives considered to meet identified need, and the reason for rejecting the alternatives.

"New construction" means to erect a new local facility or replace an outdated existing local facility.

"Operating capacity" means operating capacity as established by the Department of Youth and Family Services, based on "per bed area allowances." 6VAC35-30-60 C 2.

"Planning study" means an overall description of a proposed project consisting of new construction, renovation of existing facilities, or both. The planning study shall include a program description and a program design as detailed in approved department procedures, architectural and engineering drawings at the Schematic Design Document level, the relationship of the project to existing facilities or structures, the project's schedule, a detail of the project's total projected design, construction, operation, maintenance costs, and a cost/benefit analysis.

"Procedures" means the Department of Youth and Family Services Procedures for Receiving State Reimbursement for Local Facility Construction, Enlargement, Renovation, and Operating Funds, and for the Development and Operation of New Programs.

"Project" means any proposed or actual new construction, renovation, enlargement, or expansion of a juvenile residential facility that is or will be subject to approval by the department or regulation by the board.

"Renovation" means altering or otherwise modifying an existing local facility or piece of stationary equipment for the purpose of modernizing or changing its use or capability. Renovation does not include routine maintenance. Renovation renders the facility, item or area superior to the original.

"Replacement" means constructing a local facility in place of a like local facility or purchasing equipment to replace stationary equipment which cannot be economically renovated or repaired.

"Reviewing authority" means the department, division or agency to which the Governor has delegated authority to act in his behalf in reviewing local facility construction projects for reimbursement approval.

"Routine maintenance" means the normal and usual type of repair or replacement necessary as the result of periodic maintenance inspections or normal wear and tear of a local facility or equipment.

"Sponsor" means a city, county, commission, or any combination thereof, or any private entity under contract or arrangement with any city, county, commission, or any combination thereof, that is actually or proposing to build, renovate, expand, or operate a local facility.

"Substantive change" means user generated design changes affecting any deviation from an approved plan or design that will affect the operational and functional performance of the facility, that potentially impacts the facility's compliance with any board regulation, that would result in a change in capacity, or that would result in the sponsor seeking additional reimbursement, as detailed in approved department procedures.

6VAC35-30-30. Legal basis. (Repealed.)

A. This chapter has been promulgated by the board to carry out the provisions of §§ 16.1-313 and 16.1-322.5 through 16.1-322.7 of the Code of Virginia. This chapter:

1. Serves as a guideline in evaluating requests for reimbursement of local facility construction costs;

2. Includes criteria to assess need and establish priorities;

3. Ensures the fair and equitable distribution of state funds provided for reimbursing local facility construction costs; and

4. Provides criteria for private construction of detention or other residential facilities.

B. The board is authorized to promulgate regulations pursuant to § 66-10 of the Code of Virginia.

Part III
Procedures

6VAC35-30-35. Prescreening.

A. Any sponsor planning any construction, renovation, enlargement, or expansion of a local facility shall submit an initial writing to the department that shall include a graphic showing any proposed structural changes and a brief description of all operating capacity or programmatic changes to be accommodated by the structure. The department shall review the initial writing and inform the sponsor in writing whether the project is subject to this regulation as soon as practicable but no later than 30 days from the receipt of the initial writing from the sponsor. If the department fails to respond in the required time frame, the sponsor may proceed with the reimbursement request in accordance with this chapter.

B. Any request shall be determined to be in one of the following categories:

1. For any new construction, change, or modification of an existing local facility or piece of stationary equipment, including security related upgrades, that will affect the facility's compliance with a board regulation, result in a change in certification or licensure status, or result in increased square footage, bed space, or capacity shall be subject to this regulation.

2. For any facility enhancements not provided for in subdivision 1 of this subsection for which the sponsor seeks reimbursement, the sponsor shall submit a project overview and cost estimates to the board for approval and shall be subject to the requirements of 6VAC35-30-180. The department and board may require additional documentation.

3. Minor changes, such as routine maintenance, shall not be subject to this regulation and shall be managed informally in accordance with department procedures.

Part III
Reimbursement Request Procedures

6VAC35-30-40. Reimbursement request.

A. Requests for reimbursement shall be submitted as follows: 1. Requests for reimbursement shall be approved by the board by June 1 of each year for inclusion in the department's budget request to the Governor and consideration during the next General Assembly session. Incomplete submissions, or submissions not received by the department prior to or on April 1 will not be submitted to the board for inclusion in the department's budget request. For all projects subject to this regulation, the department shall advise the sponsor of the deadline for submissions necessary to obtain approval, for inclusion in the department's budget request to the Governor, and for consideration during the next General Assembly session.

2. B. Needs assessment. The locality sponsor shall direct a letter to the department requesting the board to recommend to the Governor reimbursement for construction, enlargement or renovation. The letter shall be accompanied by the information required by subsection B., prior to the applicable deadline, submit a needs assessment that shall demonstrate the need for the particular service, program, or facility. The board shall consider the needs assessment at its next regularly scheduled meeting and shall approve, reject, or return the needs assessment.

1. If the needs assessment is approved by the board, the department shall advise the sponsor of the board's decision and of the deadline for submitting the planning study for the project.

2. If the needs assessment is returned to the sponsor, the board shall provide the sponsor with additional factors to be considered prior to resubmission.

3. The department shall advise the sponsor of the board's decision, in writing, within seven business days of the board's decision.

3. C. Planning study. The department shall submit the completed request for reimbursement to the board for review and approval by the second board meeting or within 60 days following submission by the locality sponsor shall, upon approval of the needs assessment by the board and prior to the applicable deadline, submit a complete planning study that shall explain how the proposed project is the most appropriate and cost-effective response to the specific need identified in the needs assessment.

1. The planning study shall be accompanied by an estimate of the total amount of reimbursement to be requested and a resolution from the governing body of the sponsor or sponsors requesting reimbursement.

2. The board shall consider the planning study at its next regularly scheduled meeting and shall utilize the criteria outlined in 6VAC35-30-60 when reviewing a sponsor's planning study and accompanying materials. Upon approval of a planning study, the board shall recommend the amount of state reimbursement for the project and shall forward the sponsor's submissions and the board's recommendation to the Governor or the Governor's designee for approval.

B. Requests for reimbursement of local facility construction, enlargement or renovation costs shall be accompanied by:

1. A needs assessment as specified in the procedures;

2. A resolution from the locality or localities requesting reimbursement;

3. An estimate of the reimbursement amount being requested;

4. A planning study as specified in the procedures; and

5. 3. Requests for regional facilities shall also include a copy of the agreement between the participating localities including the allocation of financial and operational responsibilities.

6VAC35-30-45. Effect of legislative moratorium.

A. In such times when the Virginia General Assembly has imposed a moratorium on construction and reimbursement of construction costs, the sponsor shall follow the requirements of this chapter.

B. To obtain any reimbursement thereafter, the sponsor shall:

1. Pursue a legislative exception to the moratorium on construction and reimbursement of construction costs; or

2. Request reimbursement at such time as the Virginia General Assembly authorizes funding for such projects.

6VAC35-30-50. Preliminary review. (Repealed.)

Localities wishing a review of their needs assessment prior to formally submitting a reimbursement request may submit only the needs assessment as specified in 6VAC35-30-40 B. Upon review of the needs assessment, the board will notify the locality or localities as to whether it appears to the board that they are ready to proceed with the formal reimbursement request.

6VAC35-30-60. Criteria for board funding recommendation.

A. Demonstrated need. The board will shall evaluate the need for the project as demonstrated by the information provided in the Needs Assessment and Planning Study.

B. Operational cost efficiency. The board shall take into consideration the operational cost efficiency of the interior design of the facility with special concern for the number of staff required, functional layout, material selection, and energy efficiency, with special emphasis on meeting the needs of youth and the mission of the facility. Design of the program facility shall meet the standards of the board and ACA.

C. Construction cost. All sponsors shall calculate construction costs in accordance with the funding formula provided in 6VAC35-30-65. Construction economy shall be reviewed in relation to the adjusted median cost of local facilities. The adjusted median cost of local facilities will be calculated by the department as a per bed cost using the following procedure:

1. A cost per square foot base figure will be the national median square-foot cost for jails (location factor applied), published in the latest edition of "Means Facilities Cost Data" published by R. S. Means Company, Inc. The "Means Facilities Cost Data" takes into consideration the "location factor" which is the materials and labor cost differential specific to a geographical location;

2. The adjusted square-foot costs will be converted to per-bed costs using per-bed area allowances based on the average gross square footage of actual and proposed local facilities in Virginia; the area allowances must be in accordance with all applicable codes and standards according to the following formula:

National cost per square foot (Means)

X Location Factor (Means)

X Area allowance per bed (maximum 900 sq. ft. per bed)

= Adjusted median construction cost of local facility;

3. The total project cost will include:

a. Construction (subdivision C 2 above);

b. Site and utilities (Means);

c. Architectural and engineering (Virginia Capital Outlay Manual);

d. Furnishings and equipment (as itemized);

e. Project inspection (Virginia Capital Outlay Manual);

f. Contingency (3.0%);

g. Property purchased specifically for this facility; and

h. Other.

D. Board review of construction costs. The economy of construction cost is necessary and shall be reviewed as follows:

1. Review for efficiency.

a. Projects or portions of projects involving renovation of existing facilities shall be reviewed in relation to the efficiency of the renovated spaces, the appropriateness of the proposed changes, and the relationship of the changes to the project of a whole.

b. Projects of new construction shall be reviewed for the building's appropriate efficiency ratio. The board may request further information from the sponsor on projects with a building's efficiency ratio of less than 65%.

2. The board may adjust the amount being requested for reimbursement funding as follows:

a. A reduction in funding when functional areas of the facility, such as the kitchen, recreation area, educational facilities, visiting area, and laundry facilities are not included or are included at a size not in conformance with applicable regulations or normal practice;

b. An increase in funding when support services areas are proposed at sizes larger than necessary in anticipation of future enlargements or expansions of the facility;

c. A decrease in funding when the building's efficiency ratio is less than 65%; and

d. An increase in funding when the facility includes areas for extraordinary program activities.

3. Any adjustments made by the board in funding shall be based upon the gross square footage of the various conditions multiplied by a cost equal to the adjusted median cost or the proposed gross square foot cost of the facility, whichever is less.

D. E. Phased reimbursement of projects. When localities wish A sponsor may request, when submitting the planning study for review, to meet the requirements outlined in the needs assessment receive portions of the total project reimbursement based upon the completion of the project in phases,. In response to such requests, the board may approve reimbursement based on the total estimated cost of the project as if it were to be completed as a single endeavor; however, reimbursement will be in amounts proportional to the phases of construction and payment will be made only as each approved phase is completed and that portion of the building is ready to be placed in service.

6VAC35-30-65. Funding formula.

A. The following funding formula shall be used to calculate estimated construction costs at the Schematic Design Documents level in the planning study phase:

1. A cost per square foot base figure shall be the national median square-foot cost for jails published in the 24th annual edition of R. S. Means Facilities Construction Cost Data 2009 (Means) with consideration taken of the "location factor," which is the materials and labor cost differential specific to the project's geographical location.

2. The cost per square foot, adjusted using the location factor, must be in accordance with all applicable codes and standards and in accordance with the following formula:

National cost per square foot (from Means)

X Location Factor (from Means)

X Area allowance per bed (as provided for in subsection B of this section)

= Adjusted median construction cost of local facility.

3. The total project cost shall include:

a. Construction cost;

b. Site and utilities (from Means);

c. Architectural and Engineering services (services as defined in the Construction and Professional Services Manual (CPSM));

d. Furnishing and equipment (as itemized by the sponsor);

e. Project inspection (services as defined in the CPSM);

f. Contingency (10.0%);

g. Inflation factor (yearly market inflation rate applied from January 1 of the year of the submitted design through the midpoint of construction, compounded;

h. Property purchased specifically for this facility; and

i. Other.

B. The following area allowances per bed shall be used to calculate the adjusted median construction cost of a local facility:

1. A maximum of 700 square feet per bed for facilities up to 35 residents;

2. A maximum of 650 square feet per bed for facilities of 36 to 79 residents; and

3. A maximum of 550 square feet per bed for facilities with 80 or more residents.

6VAC35-30-70. Funding priorities.

A. The following criteria, as determined by the needs assessment shall serve as a guide for determining the level of priority given to requests for reimbursement:

1. New construction or renovation is needed because the existing facility is closed by the court, Board of Youth and Family Services or local governing authority due to its failure to meet state or local operating standards;

2. An unsafe physical plant which fails to meet life, health, safety standards, or a court-ordered renovation, expansion, or new construction;

3. Replacement or renovation of bedspace lost due to fire, earthquake or other disaster;

4. An existing local facility is experiencing overcrowding which is expected to continue based on population forecasts;

5. A locality with no existing local facility;

6. An addition to or renovation of support facilities;

7. Phased projects; and

8. Cost overruns.

B. Regional projects. The board will shall prioritize reimbursement requests in a manner to ensure an equitable distribution of state funds across the Commonwealth; and, absent a health, safety, or welfare risk requiring priority, the board shall ordinarily give preference to requests for reimbursement for regionalized local facilities. Regionalized local facilities shall normally serve three or more localities as determined by the needs assessment.

6VAC35-30-80. Board recommendations to the Governor.

A. The department will direct a letter to the locality notifying the governing body shall notify the sponsor in writing within seven business days of the board's decision to recommend or not to recommend a project for reimbursement, and. If the recommendation is not to recommend reimbursement, the department shall briefly explain the rationale for the decision.

B. The board shall submit to the Governor, or his designee (i) its recommendations with respect to reimbursement requests and the rationale therefor; and (ii) such information as the Governor may require with respect to a request for approval of reimbursements.

C. Final appropriations are subject to the Governor's approval and legislative enactment.

Sections 16.1-313 and 16.1-322.7 of the Code of Virginia establish the rate of reimbursement to localities for construction, enlargement or renovation.

Part IV
Project Development

6VAC35-30-90. Preliminary design.

A. The locality sponsor shall submit preliminary design documents to the department as specified in the defined in the CPSM and required by approved department procedures and the Virginia Capital Outlay manual. The locality may also be required to submit preliminary design documents to other regulatory agencies.

B. Preliminary design documents shall be approved reviewed by the department for compliance with applicable statutes, regulations, and any guidance documents that are incorporated herein.

1. If the department requires changes to the preliminary design documents, all such required changes will shall be communicated in writing to the locality sponsor.

2. The locality's representative, or its A/E, sponsor shall respond in writing to the department to all comments received from the department in the preliminary design review. Necessary revisions to the project documents may be incorporated in the submission of the construction documents (referred to as the "working drawings" in the CPSM); however, all issues in question between the locality's representative, or A/E, and the department detailed in these writings shall be resolved before the project is advanced to the construction document phase is begun (referred to as the "working drawings phase" in the CPSM).

C. When all review comments have been addressed and resolved, the department shall notify the sponsor that the project has progressed to the construction documents phase.

6VAC35-30-100. Construction documents.

A. Localities The sponsor shall submit construction documents to the department as specified in the defined in the CPSM and required by approved department procedures and the Virginia Capital Outlay manual. The locality may also be required to submit construction documents to other regulatory agencies. The fire official of the authority having jurisdiction over the proposed facility shall conduct a plans review and approve the construction. The construction documents shall include 100% complete working drawings, 100% complete specifications, and all required review approvals from local building, health, and fire officials.

B. The department will review construction documents shall be reviewed by the department for compliance with board standards, Code requirements, applicable statutes, regulations, and any guidance documents incorporated herein, and for incorporation of all changes required by the department at the preliminary document review stage. This review in no way releases the A/E sponsor from his other applicable responsibilities and requirements.

1. If the department requires changes to the construction documents, all such required changes will shall be communicated in writing to the locality sponsor.

2. The locality's representative, or its A/E, sponsor shall respond in writing to the department to all comments received from the department in the construction document review. All issues in question between the architect, the locality and the department detailed in these writings shall be resolved before the project is bid advanced to the bidding phase.

C. Upon satisfactory resolution of When all review comments have been addressed and resolved, the department shall approve the construction documents and advise the locality sponsor in writing within 10 working days, as required in approved department procedures, that the project may progress to the bidding phase (referred to as the "bid documents phase" in the CPSM).

6VAC35-30-110. Changes during project development Change order process.

If, during the project development stage, any substantive change in the scope of the project, any increase in the estimated cost of construction, or any change in the operational staff requirements occurs, the review process will be suspended until the project is resubmitted to the board for further review and possible change in the status of reimbursement recommendation.

Part V
Project Construction

6VAC35-30-120. Bids Bidding.

After bids for construction have been received and opened, and the locality sponsor has determined to proceed with the project, the locality sponsor shall require its A/E to submit to the department a bid tabulation, analysis, and recommendation as to the award of the contract. Any comments by the department shall be forwarded to the locality sponsor within 10 working days five business days of receipt; and the sponsor shall respond to the comments in writing within 10 business days of receipt of the department's comments. The department's failure to respond in the required timeframe shall serve as acceptance of the sponsor's recommendation as to the award of the contract.

6VAC35-30-130. Construction.

A. During the construction of all projects, the locality sponsor shall require its architect to submit monthly inspection or progress reports to the department. The sponsor shall submit the reports to the department no later than the 15th day of the month following the inspection or when the progress report became due. The department must respond shall notify the sponsor in writing within 10 working business days after receipt if there are of any issues or problems with the project or the reports. Failure to do so serves The department's failure to respond in the required timeframe shall serve as acceptance of the inspection and progress report. Any failure to timely submit the monthly inspection or progress reports may constitute grounds to deny the requested reimbursement, in whole or in part.

B. Any substantive changes, single change orders of $10,000 or more, and accumulative change orders exceeding the project contingency change during the construction phase shall be submitted in writing to the department for review and approval before any such change is executed. Only those changes that are approved through this the approved department procedure shall be eligible for reimbursement. Any failure to seek and obtain approval of a substantive change may constitute grounds to deny the requested reimbursement, in whole or in part.

C. A representative of the department may visit the project site during the construction period to observe the work in progress. Any observed deviations from approved documents having the effect of voiding or reducing compliance with board standards or Code requirements shall be reported in writing to the locality within 10 working days and shall be corrected.

6VAC35-30-140. Final inspection.

A. Upon construction completion, the locality's representative, or the A/E, sponsor shall establish a schedule for final inspection of the project as follows. This schedule shall include: 1. The locality shall notify (i) notification to the department and all regulatory agencies which that reviewed preliminary design or construction documents of the schedule for final inspection. The fire official of the authority having jurisdiction shall conduct a plan review and approve the construction; 2. The locality shall (ii) a request to the personnel or agencies involved in the final inspection to submit comments or recommendations in writing to the locality sponsor and forward copies to the department.; 3. The locality shall require its architect to take necessary corrective action on (iii) documentation of the correction of all deficiencies noted in the comments; and submit (iv) the submission of a report of completed actions to the appropriate reviewing agencies and forward a copy of the report to the department.

B. Upon completion of the final inspection and corrective actions as required, the locality sponsor shall provide to the department copies of all required regulatory agency letters verifying approval of the completed project. The A/E and shall certify to the department the completion of the project.

6VAC35-30-150. Record documents.

The locality sponsor shall require its architect to modify original drawings and specifications to reflect the condition of the project as actually constructed, and such documents shall be marked "Record." The record documents shall be prepared as defined in the CPSM and in accordance with approved department procedures.

Part VI
Private Construction of Juvenile Facilities

6VAC35-30-160. Legal basis Private construction of juvenile facilities.

Section 16.1-322.5 of the Code of Virginia provides for allows the Board of Youth and Family Services board to authorize a county or city or any combination of counties, cities, or towns established pursuant to § 16.1-315 of the Code of Virginia to contract with a private entity for the financing, site selection, acquisition, or design and construction of a local or regional detention home or other secure facility. Localities authorized to contract for private construction of a juvenile detention facility shall receive state reimbursement authorized by § 16.1-313, 16.1-309.5 of the Code of Virginia, in accordance with Parts I through VI of this chapter.

6VAC35-30-170. Contract Requirements for contract authorization.

Prior to receiving the Board of Youth and Family Services board's authorization to enter into a contract for private construction, localities sponsors shall certify and submit documentation demonstrating that all requirements mandated by § 16.1-322.5 of the Code of Virginia have been met by both the locality sponsor and the contractor.

Part VII
Final Reimbursement

6VAC35-30-180. Request for final reimbursement for all projects.

A. Upon completion of the project, the locality sponsor shall submit the documentation specified by the approved department procedures to the department.

B. If the final amount of reimbursement requested is no more not greater than the reimbursement amount initially recommended, including the contingency, the department will shall authorize reimbursement within 90 days of receiving a complete reimbursement request. The reimbursement request shall be in the form specified by the department.

C. If the final amount of reimbursement requested is more greater than the reimbursement amount initially recommended, the sponsor shall justify the cost increase shall be justified by the locality and resubmitted submit the adjusted reimbursement request to the board and the Governor, or his designee, for approval.

6VAC35-30-190. Compliance.

Failure to comply with these regulations will delay the review process and recommendation for disbursement of funds, and may result in the denial of reimbursement, and may result in the failure to obtain board certification or department approval to house juveniles in the facility as provided for in 6VAC35-20-69.

DOCUMENTS INCORPORATED BY REFERENCE (6VAC35-30)

Procedures for Receiving State Reimbursement for Local Facility Construction, Enlargement, Renovation, and Operating Funds, and for the Development and Operation of New Programs.

The Step-by-Step Procedures for Approval and Reimbursement for Local Facility Construction, Enlargement, and Renovation, revised March 2001, Department of Juvenile Justice.

Construction and Professional Services Manual, revision 1, October 2004, Department of General Services, Division of Engineering and Buildings (http://www.dgs.virginia.gov/LinkClick.aspx?fileticket=kn4ZKoyodZc%3d&tabid=404&mid=1128).

R.S. Means Facilities Construction Cost Data 2009, 24th Annual Edition, R.S. Means-Reed Construction Data (http://rsmeans.reedconstructiondata.com)

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.

Titles of Regulations: 8VAC20-150. Management of the Student's Scholastic Record in the Public Schools of Virginia (repealing 8VAC20-150-10 through 8VAC20-150-30).

8VAC20-180. Regulations Governing School Community Programs (repealing 8VAC20-180-10).

8VAC20-210. Classifications of Expenditures (repealing 8VAC20-210-10).

8VAC20-240. Regulations Governing School Activity Funds (repealing 8VAC20-240-10 through  8VAC20-240-50).

8VAC20-250. Regulations Governing the Testing of Sight and Hearing of Pupils (repealing 8VAC20-250-10).

8VAC20-310. Rules Governing Instructions Concerning Drugs and Substance Abuse (repealing 8VAC20-310-10).

8VAC20-320. Regulations Governing Physical and Health Education (repealing 8VAC20-320-10).

8VAC20-390. Rules Governing Division Superintendent of Schools (repealing 8VAC20-390-10 through 8VAC20-390-110).

8VAC20-410. Regulations Governing Allowable Credit for Teaching Experience (repealing 8VAC20-410-10).

8VAC20-420. Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards (repealing 8VAC20-420-10).

8VAC20-460. Regulations Governing Sick Leave Plan for Teachers (repealing 8VAC20-460-10 through  8VAC20-460-60).

8VAC20-490. Regulations Governing School Boards Local (repealing 8VAC20-490-10 through 8VAC20-490-60).

8VAC20-565. Regulations for the Protection of Students As Participants in Human Research (repealing 8VAC20-565-10 through 8VAC20-565-50).

8VAC20-720. Regulations Governing Local Boards and School Divisions (adding 8VAC20-720-10 through  8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

November 17, 2009 - 11 a.m. - Jefferson Conference Room, James Monroe Building, 101 North 14th Street, 22nd Floor, Richmond, VA

Public Comment Deadline: November 17, 2009.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 N. 14th St., 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to "…adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." These regulations are already in effect, but they are out of date. Therefore, in order for the board to properly carry out its duties, the regulations must be updated.

Additionally, Item 140 C 5 k 4 of Chapter 781 of the 2009 Acts of Assembly requires the Department of Education to "review state laws, regulations, and procedures that could be modified, reduced, or eliminated in an effort to minimize the administrative burden on local school divisions and the Department of Education. The findings from this review shall be submitted to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees by November 1, 2009."

These regulations are also being revised and consolidated in order to reduce the administrative burden on local school divisions and the Department of Education.

Purpose: This regulation is needed because the Regulations Governing School Boards Local, 8VAC20-490 were adopted on or before September 1, 1980. These regulations have not been amended since that time and are out of date. Additionally, several other regulations have been promulgated that address regulatory requirements for local school boards and school divisions. Some of these regulations were adopted on or about September 1, 1980, as well. They all lend themselves to consolidation with the Regulations Governing School Boards Local. This proposal is to promulgate new regulations governing local school boards that will include many of the provisions of the current regulation, along with incorporating the applicable regulatory requirements from these other regulations.

Substance: There are no real substantive changes from the regulations that are currently in effect to the consolidated regulation.  Some of the provisions of the current regulations are not included in the consolidated regulation because they are out of date or otherwise no longer applicable.  Additionally, some of the very detailed requirements in the current regulations have been changed in the new regulation in order to give local school divisions more flexibility in the development of their own plans and procedures.

The regulations are already in effect. The purpose of this proposal is to consolidate them in such a way that school divisions will be able to access and implement them more effectively and efficiently for the management of the public schools in Virginia, thus better serving the students and their families. This will also help fulfill the purpose of Chapter 781 of the 2009 Acts of Assembly as noted above.

Issues: The consolidation of the regulations is beneficial to the public as well as local school divisions in that the provisions will be up to date and will, in some cases, provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The new regulation will also provide local school boards and superintendents with one regulation with current regulatory requirements that are in 14 different regulations, thus making it easier for them to determine the necessary requirements. Additionally, since the regulations have been updated in the new regulation, they provide requirements for today's educational programs rather than those programs that existed in 1980.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes to consolidate thirteen current short chapters (regulations) into one chapter, Regulations Governing Local School Boards and School Divisions. The thirteen current chapters that would be repealed as part of this action are: 1) Regulations Governing Management of the Student's Scholastic Record in the Public Schools of Virginia, 2) Regulations Governing School Community Programs, 3) Classification of Expenditures, 4) Regulations Governing School Activity Funds, 5) Regulations Governing Testing Sight and Hearing of Pupils, 6) Rules Governing Instruction Concerning Drugs and Substance Abuse, 7) Regulations Governing Physical and Health Education, 8) Rules Governing Division Superintendent of Schools, 9) Rules Governing Allowable Credit for Teaching Experience, 10) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards, 11) Regulations Governing Sick Leave Plan for Teachers, 12) Regulations Governing School Boards Local, and 13) Regulations for the Protection of Students as Participants in Human Research. For the most part requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current thirteen chapters. In the process of consolidation a small number of changes are made largely for clarification.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Most of the proposed regulations simply reflect current language in the thirteen chapters to be repealed and changes in the Code of Virginia (Code) since the thirteen chapters were last revised. Since when there are conflicts between the Code and regulation the Code prevails, the new language to reflect the Code will have no impact on requirements. Changing regulatory language to reflect the current Code is beneficial in that it reduces the likelihood of the public becoming misled by out-of-date regulations. The Board also proposes to add and amend definitions for clarity. Increased clarity will of course be beneficial for the public.

The proposed new regulations explicitly state that "In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license …" Current regulations do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent; nor is this stated in the Code of Virginia. Licensure Regulations for School Personnel do delineate the requirements in order to obtain the division superintendent license, but do not explicitly state that school division superintendents must be licensed in order to hold the position of division superintendent. According to the Department of Education, the regulations have been interpreted to require licensure for many years and all division superintendents in Virginia have been licensed for many years. Thus, the proposal to explicitly state the licensure requirement will not likely have a large impact, but is a significant clarification that will help public understanding.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the economic impact analysis done by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act.

Summary:

The Board of Education proposes to consolidate 13 separate chapters into one chapter, Regulations Governing Local School Boards and School Divisions. The 13 current chapters that are repealed as part of this action are (i) Management of the Student's Scholastic Record in the Public Schools of Virginia; (ii) Regulations Governing School Community Programs; (iii) Classification of Expenditures; (iv) Regulations Governing School Activity Funds; (v) Regulations Governing the Testing of Sight and Hearing of Pupils; (vi) Rules Governing Instruction Concerning Drugs and Substance Abuse; (vii) Regulations Governing Physical and Health Education; (viii) Rules Governing Division Superintendent of Schools; (ix) Regulations Governing Allowable Credit for Teaching Experience; (x) Regulations Governing Personnel in Public School Libraries Operated Under Joint Contract Under Control of Local School Board or Boards; (xi) Regulations Governing Sick Leave Plan for Teachers; (xii) Regulations Governing School Boards Local; and (xiii) Regulations for the Protection of Students as Participants in Human Research. For the most part, requirements in the proposed Regulations Governing Local School Boards and School Divisions are consistent with the requirements in the current 13 chapters. In the process of consolidation a small number of changes are made largely for clarification.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative working day" means any day that the relevant school board office is open.

"Board" means the Virginia Board of Education.

"Days" mean calendar days unless a different meaning is clearly expressed. Whenever any period of time fixed by this chapter shall expire on a Saturday, Sunday, or legal holiday, the period of time for taking action under this chapter shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

"Department" means the Virginia Department of Education.

"Facilities fees" means any fees charged by a school board or an individual school for the use of its school buildings or grounds.

"Instructional materials" means all materials, other than textbooks, used to support instruction in the classroom, including, but not limited to, books, workbooks, and electronic media.

"Instructional personnel" means all school personnel regularly employed by the local school board or paid from public funds who are required to hold a license issued by the Virginia Board of Education.

"School activity funds" means all funds derived from extracurricular school activities, including, but not limited to, entertainment, athletic contests, facilities fees, club dues, vending machine proceeds that are not deposited in the school nutrition program account, and from any and all activities of the school involving personnel, students, or property.

"Standards of Learning" means the educational objectives established by the Virginia Board of Education that form the core of Virginia's educational program.

"Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.

"Teaching day" means a standard school day, as required by the Regulations Establishing Standards for Accrediting Public Schools in Virginia, 8VAC20-131-50, when the school is in regular session for the instruction of pupils.

Part I
Administration

8VAC20-720-20. Policy manual.

Each local school board shall maintain and follow up-to-date policies in accordance with the Standards of Quality, § 22.1-253.13:7 of the Code of Virginia.

8VAC20-720-30. Reports.

A. Each local school board and division superintendent shall submit all reports and certifications required by the Virginia Department of Education by the dates requested.

B. Failure to submit the required reports in a timely manner may result in reporting such failure to the Board of Education for the public record.

C. The reports shall be submitted not later than the due date; however, the Superintendent of Public Instruction may grant, for good cause, an extension of time not to exceed 15 calendar days for making such reports.

8VAC20-720-40. Divisionwide plan.

A. Each local school board shall develop a divisionwide, comprehensive, unified, long-range plan in accordance with the Standards of Quality, § 22.1-253.13:6 of the Code of Virginia.

B. The local board shall review such plan biennially and adopt any necessary revisions.

C. Prior to the adoption of the plan or any revisions to the plan, each local school board shall notify the public of the adoption or revision, post the plan or revisions on its website if practicable, make a hard copy available for public inspection and copying, and conduct at least one public hearing to solicit comments.

8VAC20-720-50. School laws and regulations.

A. All school board employees shall be familiar with the school laws and regulations related to their duties and responsibilities and ensure that they are implemented.

B. In addition to this chapter, local school divisions and school boards shall adhere to Title 22.1 of the Code of Virginia and the applicable Board of Education regulations in Title 8 of the Virginia Administrative Code.

Part II
Finance

8VAC20-720-60. Classification of expenditures.

A. Pursuant to § 22.1-115 of the Code of Virginia, local school boards shall use the following major classifications of expenditures when the division superintendent, with the approval of the local school board, prepares the estimate of funds needed for public schools:

1. Instruction;

2. Administration, attendance, and health;

3. Pupil transportation;

4. Operation and maintenance;

5. School food services and other noninstructional operations;

6. Facilities;

7. Debt and fund transfers;

8. Technology; and

9. Contingency reserves.

B. Nothing in this regulation shall prohibit the preparation and use of line item budgeting within these categories.

8VAC20-720-70. School activity funds.

A. Local school boards shall be responsible for the administration of this subsection in the schools under their control.

B. Records and bonds.

1. Each school shall keep an accurate record of all receipts and disbursements so that a clear and concise statement of the condition of each fund may be determined at all times.

2. It shall be the duty of the school division official designated by the local school board to perform such duties to ensure that such records are maintained in accordance with this subsection and rules promulgated by the local school board.

3. The designated school division official shall perform the duties prescribed by this subsection.

4. The designated school division official shall be bonded, and the local school board shall prescribe rules governing such funds for employees who are responsible for these funds.

5. All records shall be subject to public disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

C. The basic information required by the accounting principles for governmental accounting and reporting established by the Governmental Accounting Standards Board must be incorporated into any system used by the local school division.

D. Audit, examination, or review; monthly and annual reports.

1. At least once a year, a duly qualified accountant, accounting firm, or internal auditor shall perform an audit, examination, or review of school activity funds to ensure funds are being managed in accordance with these regulations and all funds are properly accounted for. The type of engagement (audit, examination, or review) and the accountant, accounting firm, or internal auditor shall be approved by the local school board.

2. A copy of the report resulting from the audit, examination, or review (and the completed corrective action plan, if suggestions for improvement are made) shall be reviewed by the division superintendent and the local school board and filed in the office of the clerk of the school board, the division superintendent, and the principal.

3. The cost of such an audit, examination, or review may be paid from the school operating fund or school activity funds.

4. Monthly reports of such funds shall be prepared by the designated school division official and filed in the principal's office.

E. Nothing in this chapter shall be construed as superseding or modifying the federal-state plan for operation of cafeterias under the Richard B. Russell National School Lunch Act, 42 USC § 1751 et seq., as amended effective October 1, 2008, and the Child Nutrition Act of 1966, 42 USC § 1771 et seq., as amended effective October 1, 2008.

8VAC20-720-80. (Reserved.)

Part III
Instruction

8VAC20-720-90. Health education program.

A. Elementary, middle, and secondary schools shall provide a comprehensive health education program focusing on instruction related to alcohol and drug abuse, smoking and health, personal growth and personal health, nutrition, prevention and control of disease, physical fitness, accident prevention, personal and family survival, environmental health, mental health, and consumer education.

B. The health education program shall include instruction in drugs and substance abuse prevention. As part of the program, school divisions shall:

1. Encourage and support organizations and activities that will develop a positive peer influence concerning substance abuse.

2. Create a climate whereby students may seek and receive counseling about substance abuse and related problems without fear or reprisal.

C. The health education program shall be developed in accordance with the Board of Education's Health Education Standards of Learning for Virginia Public Schools, January 2008.

Part IV
Personnel

8VAC20-720-100. Division superintendent of schools.

A. In order to be appointed a division superintendent, applicants must hold an active Virginia division superintendent's license prescribed by the Board of Education's Licensure Regulations for School Personnel, 8VAC20-22.

B. In case of a division superintendent vacancy, the local school board shall appoint a new superintendent in accordance with § 22.1-60 of the Code of Virginia.

C. If a new superintendent is not appointed within the time prescribed by § 22.1-60, the Virginia Board of Education shall appoint the superintendent in accordance with the board's Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, March 22, 2006.

D. The division superintendent shall perform such duties as may be prescribed by law, by the local school board, and by the Board of Education. In addition, the division superintendent shall:

1. Observe such directions and regulations as the Superintendent of Public Instruction or Board of Education may prescribe and make special reports whenever required.

2. Ensure strict enforcement of all school laws and regulations and compliance with the decisions of the Superintendent of Public Instruction and Board of Education.

3. Visit and cause to be inspected each school on a regular basis and inquire into all matters relating to the management of the school, the course of study, method of instruction, use of textbooks, and condition of the school buildings.

4. Ensure that teachers faithfully discharge the duties assigned to them, and report promptly to the local school board any neglect or violation of any of the laws or regulations by teachers along with recommendations for appropriate action.

5. Close public school buildings that appear to be unfit for occupancy in accordance with § 22.1-136 of the Code of Virginia.

6. Ensure timely submission of all reports and certifications required by the Virginia Department of Education by the dates requested.

8VAC20-720-110. Teacher contracts and licenses.

A. All teachers shall be licensed and endorsed in accordance with the Board of Education's Virginia Licensure Regulations for School Personnel, 8VAC20-22.

B. No teacher shall be regularly employed by a local school board or paid from public funds unless such teacher holds a license issued by the Board of Education or a three-year local eligibility license issued by a local school board pursuant to § 22.1-299.3 of the Code of Virginia.

C. The local school board shall enter into written contracts with teachers prior to the commencement of their duties. Such contracts shall be executed on behalf of the local school board by the chairman and the clerk.

D. Such contracts shall be in accordance with the Code of Virginia and the Board of Education's Regulations Governing the Employment of Professional Personnel, 8VAC20-440.

8VAC20-720-120. Sick leave plan for teachers.

A. Allowances.

1. Each full-time teacher in the public schools shall earn a minimum of 10 days of sick leave each year.

2. Earnings for sick leave for less than a full year of full-time employment shall be at the rate of one day per month, or major fraction thereof. This provision applies to teachers who do not begin employment at the start of the school term and to those who do not complete the full year.

3. A teacher cannot claim any portion of earned sick leave unless he has actually reported for duty for the regular school term in accordance with the terms of the teacher's contract. If a teacher is unable, because of illness, to begin employment when school opens in the fall, such teacher may be allowed to use accumulated leave not to exceed the balance credited to him as of June 30 of the immediate preceding school year.

4. School boards may, by resolution, permit teachers to anticipate sick leave earnings for the current school year, provided adequate provision is made for a refund in the event the teacher terminates employment before such credit is earned.

5. Teachers who leave the profession to enter military service, or who are activated or deployed for military service, do not forfeit accumulated leave earnings unless they fail to return to the teaching profession immediately upon discharge from military service or return from deployment or activation.

B. Local policies.

1. Each local school board shall adopt policies providing for the accumulation, termination, and transfer of sick leave.

2. Each local school board shall adopt policies providing for leave without pay for school board employees with debilitating or life-threatening illness or injury, without regard to the employee's length of service with the school board.

Part V
Student Records

8VAC20-720-130. Management of student records.

Local education agencies shall manage the scholastic records of all students in compliance with applicable law and regulations, including the Family Educational Rights and Privacy Act and regulations, 20 USC § 1232g and 34 CFR Part 99; the Protection of Pupil Rights Amendment and regulations, 20 USC § 1232h and 34 CFR Part 98; the Individuals with Disabilities Education Improvement Act and regulations, 30 USC §§ 1400-1485 and 34 CFR Part 300; the No Child Left Behind Act of 2001 and regulations, P.L. 107-110 and 34 CFR Part 200; and the Code of Virginia.

Part VI
Students

8VAC20-720-140. Students as participants in human research.

A. No human research involving students shall be conducted or authorized by the Virginia Department of Education or any public school of the Commonwealth, unless in compliance with this chapter and other applicable law.

B. No such research shall be conducted or authorized unless the student and the student's parents or legally authorized representative give their informed consent. Such informed consent shall be evidenced by a signed and witnessed informed consent form that complies with § 32.1-162.18 of the Code of Virginia.

C. Any such research shall be approved and conducted under the review of a human research committee, which shall be established by the agency or school conducting or authorizing the research. Any such committee shall comply with the provisions of § 32.1-162.19 of the Code of Virginia. The committee shall submit to the Governor, the General Assembly, and the Superintendent of Public Instruction or his designee at least annually a report on the student projects reviewed and approved by the committee, which shall state the significant deviations from the proposals as approved.

D. There shall be excluded from the operations of this chapter those categories of research as set forth in § 32.1-162.17 of the Code of Virginia.

E. Research shall be conducted in accordance with the provisions of the Protection of Pupil Rights Amendment, 20 USC § 1232h, and its implementing regulations, 34 CFR Part 98.

8VAC20-720-150. Testing sight and hearing of students.

A. The sight and hearing of students in grades K, 3, 7, and 10 shall be screened within 60 administrative working days of the opening of school in accordance with the requirements of § 22.1-273 of the Code of Virginia.

B. Whenever a student is found to have any impairment of vision or hearing or a disease of the eyes or ears, the principal shall notify the parent or guardian in writing, of such impairment or disease.

C. This screening of all students shall be monitored through the Department of Education's review of special education and related services in local school divisions.

Part VII
Instructional Materials and Textbooks

8VAC20-720-160. (Reserved.)

8VAC20-720-170. (Reserved.)

DOCUMENTS INCORPORATED BY REFERENCE (8VAC20-720).

Health Education Standards of Learning for Virginia Public Schools, January 2008, Board of Education, Commonwealth of Virginia.

Procedure for Appointment of a School Division Superintendent by the Virginia Board of Education, approved by the Board of Education on March 22, 2006.